Skip to main content

Full text of "Decisions of the Department of the Interior and the General Land Office in cases relating to the public lands"

See other formats


Google 



This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http: //books .google .com/I 



DECISIONS 



OF 



THE DEPARTMENT OF THE INTERIOR 



AND 



GENERAL LAND OFFICE 



IN 



CASES RELATING TO THE PUBLIC LANDS 



Fbom January, 1897, to June, 1897. 



VOLtJMK XXIV. 

Edited by S. V. PROUDFIT. 



WASHINGTON : 

GOVERNMENT PRINTING OFFICE. 

1897. 



LIBRARY OF THE 
LELAND STANFORD JR. UmERSITY. 



Department of the Interior, 

Washington, D. (7. 

This publication is held for sale by the Department at cost price, as follows : 

Volnmel, from July, 1881, to June, 1883 $1.05 

Volume 2, from July, 1883, to June, 1884 1.15 

Volume 3, from July, 1884, to June, 1885 1.07 

Volume 4, from July, 1885, to June, 1886 1.15 

Volume 5, from July, 1886, to June, 1887 1.05 

Volume 6, from July, 1887, to June, 1888 1.45 

Volume?, from July, 1888, to December, 1888 1.10 

Volume 8, from January, 1889, to June, 1889 1.16 

Volume 9, from July, 1889, to December, 1889 1.15 

Volume 10, f^om January, 1890, to June, 1890 1. 15 

Volume 11, from July, 1890, to December, 1890 1.10 

Volume 12, from January, 1891, to June, 1891 1 1.15 

Volume 13, from July, 1891, to December, 1891 1.15 

Volume 14, from January, 1892, to June, 1892 1. 15 

Volume 15, from July, 1892, to December, 1892 1.05 

Volume 16, from January, 1893, to June, 1893 1.05 

Volume 17, from JiUy, 1893, to December, 1893 1.05 

Volume 18, from January, 1894, to June, 1894 1. 05 

Volume 19, from July, 1894, to December, 1894 1.05 

Volume 20, from January, 1895, to June, 1895 , 1.05 

Volume 21, from July, 1895, to December, 1895 '.1.05 

Volume 22, from January, 1896, to June, 1896 1.15 

Volume 23, from July, 1896, to December, 1896 1.05 

Volume 24, from January, 1897, to June, 1897 1. 05 

Digest, volumes 1 to 22, inclusive 1. 25 

Correspondence relating to the above publications, and all remittances (which 
must be by money order), should be addressed to the Secretary of the Interior^ 
Washington, D. C. 

Ul 



Office of the Assistant Attorney-Generai^ 

The decisions of the Secretary of the Interior relating to public lands are prepared 
in the office of the Assistant Attorney-General for the Interior Department, under 
the supervision of that officer, and submitted to the Secretary for his adoption. 



ATTORNEYS IN THE OFFICE OF THE ASSISTANT ATTOJiNETGENETi A L DURING 

TIME COVERED BT THIS REPORT. 

Willis Van Devanter/ AaHstant Altamey-General. 



Vivian Brent. 

EVERARD BlERBR, Jr.' 

W. M. Byrd. 

F. L. Campbell. 
P. W. Clements. 

P. J. COSTON. 

W. A. Edwards.3 
Arthur English. 

G. B. Gardner. 
C. J. Groseclose. 
B. W. Hunter. 



John Lyon. 

J. L. McCreery. 

C. W. PiNKNEY. 

W. C. Pollock. 
S. V. Proudfit. 
A. B. Pugh. 
G. C. Ross. 

£. M. RUCKBR. 

L. R. Smith. 
C. J. Wellborn. 
W. M. Wilson. 



> Appointed March 23, 1897, vioe T. H. Lionberger, resigned. 
^ On detail from the Board of Pension Appeals. 
* On detail from the General Land Office. 



TABIiE OF CASES REPORTED. 



Adams r. George 424 

Addenda Mining Co., Cain etal. v. 18 

Adkinson, Francis (on review) . . 3d5 

Amick 7. Carroll 558 

Anderson V. Wing 409 

Angell, John C 575 

Arnold, Benjamin 312 

* Arnold, Simon B 486 

Atchinson, William A 561 

Avery et aZ., Coeby eial,v 565 

Ayers, Northern Pacific R. R. 

Co. V 40 

Basin City 405 

Bateman r. Carroll 144 

Beharv. Sweet 158 

Beleele, Dyche « 494 

Belknap, Harris V 88 

Bellamy ir. Cos 181,452 

Bender^ Doyle V 535 

Benson r. State of Idaho 272,416 

Berg ei al,, Hastings and Dakota 

Ry. Co 146 

Biekford et aL, Hershey v. (On 

review) 496 

Black Tomahawk v. Waldron .... 145 

Bohanr. Brest 16 

Bonnett v. Jones (on review) .... 242 

Bradenr.Shaw 801 

Bradford el al, v. Doty 32 

Broadwell, Gilmore V 482 

Brooks, Kirk 9 448 

BrouBsean, United States v 454 

Brown v. Northern Pacific R. R. 

Co 370 

Bmmmet t v. McCordia To wnsite . 468 

Backley V. Mnrphy 352 

Ballard 9. Prescott 402 

Bnller, Guillory v 209 

BargesB, Allen L 11 

Bame^ John W 443 

Bntlerv. Davis 60 

Batler r. Robinson 385 

Byers, Carney V 38 



P»g«. 

Cain et al, v. Addenda Mining Co . 18 

Caldwell v. Gold Bar Mining Co. 258 
California Mortgage Loan and 

Trustee 246 

California and Oregon Land Co., 

Goodrich v 119 

California, State of, Holcomb v. . 26 

California, State of, Rice v 14 

California, State of, Quigley v . . . 507 

California, State of, v, Wright.. . 54 
California, State of, etal, r.tJnited 

States e^aZ 68 

Callicotte r. (Jeer 135,399 

CaribouLode 488 

Carlisle, Francis P 581 

Carney v.Byers 88 

Carroll, Amick V 558 

Carroll, Bateman V 144 

Carter V. Davidson 288 

Carryl,F.M 415 

Central Alaska Company 545 

Chamberlain, City of r. King eial. 526 

Christian, Penwell v, (on review) 835 

CityofGnthrie 366 

Clark, Riley G 504 

Clark V. Mansfield 343 

Clark r. Renfro ef al 61 

Clanssen, Patton V 406 

Clayton, Walker 17 79 

Cliff, Hiner 432 

Coffin V. Newoomb 360 

Coffman et at., Northern Pacific 

R.R.C0. V 280 

Colby e< al,, Ullni; 311 

Colcord, Hodges et al, v 221,472 

Collettv. Northern Pacific R. R. 

Co 180 

Cook V, Taylor 200 

Corry, John R. et aZ 305 

Cosby et al. v, Avery «< al. ..... . 565 

Countryman, Gourley v, (on re- 
view) 49,342 

Cowleso.Huff etal 81 

Cox, Bellamy v 181,452 

vn 



vni 



TABLE OF CASES REPORTED. 



Page. 

Crane, Spnrlock et al. v 570 

Crocker, Oregon and California 

R.R.CO. r 4 

Cromwell, Mason r 248 

Comutt r. Lawrence 428 

Davidson, Carter r 288 

Davis, Butler v 60 

Davis, OdetttJ 153 

Dobbins et al., Pratsch etal.v ... 426 

Doe, George H 385 

Donahne, Meal v 155 

Dom r. EUingson 163 

Doty, Bradford et al. r 32 

Doty, Popp t: 350 

Doyle V. Bender 535 

Dudley, Lucas r 310 

Dyche r. Beleele 494 

Eastern Oregon Land Company. 332 
Eimstad r. Northern Pacific R. 

R. Co 230 

Ellingson, Dorn r 163 

Eureka and Excelsior Consoli- 
dated Gold Mining Co 512 

Ewart, Taylor el aZ. r 499 

Farr, Joseph 1 

Ferreira, Francisco 205 

Ferst r. Solberg 376 

Fieberger, Northern Pacific R. R. 

Co. V 375 

Fisher, George W 480 

Florida, State of 147, 176 

Florida Railway and Navigation 

Co. r.Hawley 245 

Foote V. McMillan (on review) .. 46 

Fort Cameron 269 

Foster, Thomas 159 

Foster,T.J.e<a/ 66 

Foster et ah, Roscoe eiahv 436 

Frazier e« flZ. tj. Taylor 358 

Frost, Edwin F.elflZ 228,525 

Gass,Talleyr 45 

Geer, Callicotte r 135,399 

George, Adams V 424 

Gibbs, Vincent V 383 

Gilmore v. Broad well 482 

Ginder, Henline v 476 

Gladys A. Mining Co. t*. Gross. .. 349 
Glover et al. v. Swarts (on re- 
view) 447 

Gold Bar Mining Co., Caldwellr. 25K 

Goodsell, Mackall et al. v. ...... 553 



Page. 

Goodrich r. California and Ore- 
gon Land Co 119 

Gorder v. St. Paul, Minneapolis 

and Manitoba Ry. Co 434 

Gourley v. Countryman 49, 342 

Gowdy et al, v. Kismet Gold Min- 

ingCo 191 

Grimes, Northern Pacific R. R. 

Co.r 452 

Gninewald et al. v Northern Pa- 
cific R. R. Co. e< aZ 195 

Guillory r. Boiler 209 

Guthrie, City of 366 

Haggberg et al. r. Mahew 489 

Hallack, Lucy C 542 

Hall r. Mitchell 584 

Harding r. Moss 160,434 

Hardy v. McClellan et al 285 

Harris r. Belknap 88 

Harris r. Northern Pacific R. R. 

Co 441 

Harris, Skoyen r 46 

Harrison, Henry H 256 

Hasselquist, Anders G 351 

Hastings and Dakota Ry. Co. r. 

Berg etal 145 

Havard et al.. Smith r 457 

Hawley, Thomas 9 

Hawley, Florida Railway and 

Navigation Co. r 245 

Hayden r. Jamison 403 

Head, Norstrum r 413 

Henley el al. r. Sharpnaok 315, 581 

Henline v. Ginder 476 

Hensley r. Waner 92,414 

Herrick, Wallace H 23 

Hershey r. Bickferd et al. (on re- 

view) 496 

Hinei?. Cliff 432 

Hodges el aU r. Colcord 221, 472 

Holcomb V. State of California.. 26 

Horton, Albert H 379 

Howell, John H 35 

Hudson V. Orr 429 

Huff el al., CowlesfJ 81 

Hull el al. r. Ingle 214 

Hnmiston r. Northern Pacific R. 

R. Co. (on review) 451 

Hurst, Elbert 91 

Hnsted, Leslie O 255 

Hnyck et ah v. Harding 420 

Idaho, State of, Benson r 272, 416 

Indian Allotments 26>4 



TABLE OF CASES REPORTED. 



IX 



Ingle. Hull etal, v 

luuiaii r. Northern Pacific li. R. 
Co 

Iowa Railroad Land Co. (on re- 
view 

Irwin r. Kewsom (on review) . - . - 



Jamison^ Hayden v 

Jeremy, Thomas E 

JoneSf Bonnett r. (on review) 

Jones. State of Oregon et al.v... 

KeUy,X.F 

Kiug«/ a?.,City of Chamberlain r. 

Kipp, Sylvester et al 

Kirk r. Brooks 

Kismet Gold Mining Co., Gowdy 

etal. r 

Korha, John W 

Kuhlman, Lee v 

Kuhn, State of Washington v... 

Lakey et al,f Robords t* 

Lawrence, Cnmntt v 

Lawrence v. Seeger et al 

Leach et al. r. Potter 

Lee, Anna 

Lee r. Knhlman 

Lefreiner, Wilson r 

Lehrbass, Van Dyke v 

Lindsey, Jennie W 

Lincoln r. Sowers 

Lonisiana, State of 

Lucas r. Dudley 

Lyman, Mary O 



Mackall et al. v. Goodsell 

Mahew, Haggberg et al. v 

Majors v. Rinda 

Maloney et al., St. Paul, Minne- 
apolis and Manitoba Ry. Co. v. 

Mauslield, Clark r 

Martineau, James H 

Mason r. Cromwell 

Matthews, Phillips r 

McClellan etal.. Hardy r 

McClaine, St. Louis, Iron Moun- 
tain and Southern R. R. Co. r.. 

McCordiaTownsite, Brmnmettr. 

McKelvey, Christopher W 

McMilLin, Foote r. (on review).. 

Meal V. Donahue 

Miles, Palmer r 

Minnesota, State of, St. Paul and 
Sioux City R. R. Co. r 



538 
448 

191 



428 
477 
573 
531 
400 
398 
322,569 
557 
42 
231 
310 
493 

553 
489 
277 

460 
343 
333 
248 
297 
285 



Page. Page. 

214 Montgomery, Wesley 390 

Montoya et al., United States v.. 52 

318 Moss, Harding t? 160,434 

Muller r. Northern Pacific R. R. 

125 Co 439 

189 Murphy, Buckley v 352 

Murphy's Heirs, Smith et a?, r .. 139 

403 

418 i Xeill, John S. M 393 

242 ! Newcomb, Coffin r 360 

116 ' Newsom, Irwin r. (on review).,. 189 

i Northeast Perry 580 

392 Northern Pacific R. R. Co 138,320 

526 NorthernPacificR.R.Co.r.Ayers. 40 

Northern Pacific R. R. Co., 

Brown v 370 

Northern Pacific R. R. Co. r. Coft- 

mane^aZ 280 

408 Northern Pacific R, R. Co., Col- 

400 lett r 180 

12 Northern Pacific R. R. Co., Eini- 

i stadr 230 

291 Northern Pacific R. R. Co. r. Fie- 

berger 375 

Northern Pacific R. R. Co. r. 

Grimes 452 

Northern Pacific R. R. Co. et al., 

Grnnewald et al.v 195 

Northern Pacific R. R. Co., Har- 
ris t? 441 

Northern Pacific R. R. Co., Hu- 

miston V. (on review) 451 

Northern Pacific R. R. Co., In- 

man r 318 

Northern Pacific R. R. Co., Mul- 
ler » 439 

Northern Pacific R. R. Co., 

O'Brien v, (on review) 413 

Northern Pacific R. R. Co.,Page v. 444 
Northern Pacific R. R. Co. v, 

Rogers 21 

Northern Pacific R. R. Co. v. 

Shepherdson 417 

Northern Pacific R. R. Co., Shan- 

uahan V 516 

Northern Pacific R. R. Co. v. St. 
Paul, Minneapolis and Mani- 
toba Ry. Co 141, 195 

Northern Pacific R. R. Co. et al. 

r. Waldon 24 

Norstrum r. Head 413 



274 
468 
536 
46 
155 
466 



364 



O'Brien v. Northern Pacific R. R. 

Co. (on review) 413 

Odett r. Davis 153 



TABLE OF CASES REPORTED. 



Page. 

Ohio, State of 522 

O'Melveny, H. W 560 

Oregon and California R. R. Co . 381 
Oregon and California R. R. Co. 

r. Crocker 4 

Oregon, State of, et al. r. Jones . 116 

Orr, Hudson r 429 

Page V. Northern Pacific R.R. Co. 444 

Palmer V. Miles 466 

Pape, Emma L 513 

Patton r. Clausaen 406 

Pensacola and Georgia R. R. Co., 

Stokesf 396 

Penwell r. Christian (on review) 335 

Perrine Grant 109 ' 

Phillips r. Matthews 297 , 

Phillips V, Sioux City and Pacific 

R. R. Co. (on review) 29 i 

Phillips r. Smith 472 

Poppr. Doty 350 

Potter, Leach 0t a2. r 673 

Pratsch et al. r. Dobbins €tal..» 426 

Prescott, BuUard v 402 

Pretzel, Joseph 64 

Provence, Stewart r 522 

Qinigley v. State of California. . . 507 

Reid, AbramM 306 

Renfro e< a7., Clark V 61 

Re vor, James tf< al 517 

Rice V. State of California 14 

Rinda, Majors V 277 

Robinson, Butler V 385 

Rogers, Northern Pacific R. R. 

Co. f> 21 

Roscoe et al. v. Foster et al 435 

Robords r. Lakey f( aZ 291 

Scisson, J. H 330 

See r. See 244 

Seeger «i a/., Lawrence V 477 

Shank, John P 296 

Shannahan r. Northern Pacific 

R.R.CO 516 

Sharpnack, Henley etal. r 315, 581 

Shaw, Braden r 301 

Shepherdson, Northern Pacific 

R. R. Co. V 417 

Sioux City and Pacific R. R. Co., 

Phillips V. (on review ) 29 

Skoyen V. Harris 46 

Slocum, William F 308 

Smith, Philommeelal 323 



Page. 

Smith r. Havard e< ol 457 

Smith et al. r. Murphy's Heirs. . . 139 

Smith, Phillips r 472 

Smith et al. r. Taylor 64, 509 

Solberg, Ferst tj 376 

South Olga Fishing Station 314 

Southern Pacific R. R. Co 543 

Southern Pacific R. R. Co., 

Walker© 172 

Sowers, Lincoln v 42 

Spurlock et al. v. Crane 570 

Staples et al. r. St. Paul and 

Northern Pacific R. R. Co 339 

State of California, Holcomb v.. 26 

State of California, Rice r 14 

StAte of California, Quigley v . . . 507 
State of California et al. v. United 

States et al 68 

State of California r. Wright. . . 54 

State of Florida 147,176 

State of Idaho, Benson v 272, 416 

State of Louisiana 231 

State of Ohio 522 

State of Oregon et al. v. Jones. . . 116 

Stote of Washington 122 

State of Washington r. Knhn ... 12 

State of Washington, Todd r. .. 106 

State of Wyoming 562 

St. Loais, Iron Mountain and 

Southern R. R. Co. r. McClaine 274 
St. Paul, Minneapolis and Mani- 
toba Ry. Co. r. Maloney etal.. 460 
St. Panl, Minneapolis and Mani- 
toba Ry. Co., Gorder v 434 

St. Panl, Minneapolis and Mani- 
toba Ry. Co., Northern Pacific 

R.R.C0.1; 141,195 

St. Paul, Minneapolis and Mani- 
toba Ry . Co. V. Steege etal 453 

St. Paul, Minneapolis and Mani- 
toba Ry. Co. r . Thompson 226 

St. Paul and Northern Pacific 

R. R.Co., Staples 0/aZ. r 339 

St. Paul and Sionx City R. R. Co. 

r. State of Minnesota 364 

Stewart v. Provence 522 

Stokes t*. Pensacola and Georgia 

R.R.C0 396 

Swaze V. Suprenant 337,580 

Swarts, Glover et al. v. (on re- 
view) 447 

Sweet, Behar V 158 

Talley r. Gass 45 

Taylor, Cook v 200 



TABLE OF CASES REPORTED. 



XI 



Page. 

Taylor et al. r. B^art 499 

Taylor, Frazier ef a/, r 358 

Taylor,Mar8 6 

Taylor, Smitlitfi a ^ v 64,509 

Teter, Lowell D 284 

The Dalles Military Wagon Road 

Co,,Watoonr 202 

Thomas, J. W 496 

Thompson, St. Paul, Minneapolis 

and Manitoba Ry . Co. t* 226 

Todd V, State of Washington 106 

Toole, Michael L. et aZ 462 

Townsite Board Nnmber Six ... . 582 
Townsite of MoCordia, Bram- 

mettr 468 

Ulinr. Colby e^ttZ 311 

United States v, Brousseau 454 

United States v, Montoya etal.. 52 
United SUtes ei ah, State of Cal- 
ifornia el aZ.r 68 

Van Dyke V. Lehrbaes 322,569 



Page 

Vincent r. Gibbs 383 

Waldon, Northern Pacific R. R. 

Co.e^a7.v 24 

Waldron, Black Tomahawk v... 145 

Walker r. Clayton 79 

Walker v. Southern Pacific R. R. 

Co 172 

Walters, David 58 

Waner, Hensley v 42,414 

Wsshingtou, State of 122 

Washington, Stat« of v. Knhn. . . 12 

Washington, State of, Todd r 106 

Watson V. The Dalles Military 

Wagon Road Co 202 

Wheaton v. Wallace 100 

Wiley, William 423 

Wilson r. Lefreiner 398 

Wing, Anderson v 4C9 

Woodr. Wood 177 

Wright V, State of California. .. 54 

Wyoming, State of 562 



TABL.E OF CASES CITED, 



[The abbreriation " L. B.'* refers to this pnblicatioo ; **L. and R.," to the records in the division of 
Lands and Railroads ; "B.L. P.*' refers to Brainerd's Legal Precedents; "1 C.L.L.," to Copp*0 
Public Land Laws, Ed. 1875; "2 C. L. L.," to Copp's Public Land Laws, Ed. 1882; "C. L. O.," to 
Copp's Land Owner; "C. M. D.." to Copp's Mininic Decisions; "C. M. L.,'» to Copp's Mineral 
Lands ; " Lester," to Lester's Land Laws and Decisions ; "Rep.," to the Reporter; " S. M. D.," to 
Sickles's Mining Laws and Decisions; and "C. CIs.," to the Court of Claims.] 



Page. 

Adams, Maggie; 19L.D.,242 557 

Aldridge v. Williams ; 8 How., 9 235 

Allenv.Cnrtins; 7L.D., 444 86 

Allen r. Price; 15L.D.. 424 85,474,478 

Aaderaon v. Anderson; 5 L. D., 8 346 

Anderson v. Northern Pacific R. R. Co. 

etal.; 7L.D.,163 166 

Ard v. Brandon; 156U.S., 537 348 

Atherton v. Fowler; 90 TJ. S., 513 224, 348 

Atlantic and Pacific R. R. Co. ; 12 L. D., 

116 138 

Austin r.Norin; 4L.D., 461 524 

Avery et al r. Freeman et al. ; 22 L. D., 505 568 

Bailey, John W., «< a2. ; 5 L. D., 216 108 

Bardon v. Xortbem Pacific R. R. Co. ; 145 

U.S.,535 142 

Barker, Ellen; 4L.D.,514 378 

Baahford v. Clark etal.;22 L. D., 328 80, 157 

Beckner, Tobias; 6L.D.,134 188,283 

Beecbcr v. Wetherby ; 95 U. S., 517 151 

Beharv. Sweet; 24L.D.,158 100 

BeUamyr. Cox; 24L.D..181 283 

Bender r. Sbimer; 19L.D.,363 852,567 

Blackwell Townsite v. Miner ; 20 L. D., 544 571 

Block 9. Contreras; 4L.D.,380 363 

Boord p. Girtman; UL.D.,516 261 

Bowker, Edward; llL.D.,361 444 

Bowles v.Frazier; 22L. D.,310 317 

Boyle V, Northern Pacific R. R. Co. ; 22 

L. D., 184 180,341,516 

Bradford, George K. ; 4 L. D., 260 244 

Brady r. Williams; 23 L.D., 533 97 

Bray ». Colby ; 2L.D.,78 557 

By bee c- Oregon and California R. R. Co. ; 

139n.S..e63 113 

Caldwell v. Carden ; 4 L. D., 306 30O 

Campbell, Emma J . ; 15 L. D., 392 248 

Campbell V. Jackson ; 17L.D.,417 273 

Capp8,L.J.: 8L.D.,406 363 

Carland, John : IL. D., 631 537 

CarroIL v. SafTord; 3 How., 441 140 

Casaady v. Eiteljorg's Heirs; 18 L. D., 

235 461 

Castello V. Bonnie, 28 L. D., 162 53 



Pago. 

Castle V. Womble ; 19 L. D., 455 176, 675 

Caward, J. J.; 3L. D., 605 524 

Cawoodv. Dumas ; 22 L. D., 585 585 

Cedar Hill Mining Co. ; 1 L. D., 628 2U 

Cedar Rapids and Missouri River R. R. 

Co. et al. V. Herring; 110 TJ. S., 27 44 

Central Pacific R. R. Co. ; 2 L. D., 480. ... 113 
Central Pacific R. R. Co. V.California; 4 

C.L.0.,151 27 

Chicago, St. Paul, Minneapolis and 

Omaha R. R. Co. ; lOL.D., 147 9 

Clancy et al. v. Hastings and Dakota Ry. 

Co.; 17L. D.,592 340 

Clay berg, Andrew ; 20 L. D., Ill 307 

Cook V. Yilla, on review ; 19 L. D., 442 86 

Cooper et aL v. Sioux City R. R. Co. ; 1 L. 

D., 345 113 

Cooper, John W., et al ; 16 L. D.. 285 24 

Cooper V. Roberta ; 18 How., 173 151 

Cowles V. Huff et al. ; 24 L. D., 81 218. 409, 474 

Cragin D.Powell; 128 U.S., 691 481 

Craven^ Albert G. ; 14 L. D., 140 247 

Creary . William E. ; 2 L. D., 694 538 

Crooks v.Hadscll; 3L. D.,258 363 

Cullins 0. Leonard ; 17 L. D. , 412 226 

Cumutt V. Jones ; 21 L. D., 40 422, 428 

Curtin et al. v. Morton ; 22 L. D., 01 64 

Dakota Central R. R Co. r. Downey; 8 L. 

D.,115 461 

Daneri v. Texas and Pacific R. R. Co. ; 2 

L.D.,548 .• 114 

Darginee 02. V.Koch; 20L.D.,384 263,574 

Davis, Da\id J. ; 7 L. D., 560 87 

Davis. Jennie L. ; 19L.i).,87 42 

Davis's Administrator v. Welbbold ; 139 

U.S.,507 176 

Dean V. Simmons ; 16L. D.,527 571 

Defieback v. Hawke ^ 116 U. S., 392 176 

Degenhart o. Korthem Pacific; IS L. D., 

159 22 

Deseret Salt Co. v. Tarpey ; 142 U. S.. 241. 113 

Denman v. Domonigonr; 18 L. D. , 41 388 

District of Columbia t;. Washington Mar- 

ketCo.; 108U.S.,243 285 

Dobie v. Jameson ; IOL.D.,91 27a 

XIU 



XIV 



TABLE OP CASES CITED. 



Page. 
Dober v. Campbell et ol., on review ; 18 L. 

D.,88 472 

Drewv.Comisky; 22L.D^174 53 

Duify V. Northern Paciflo IL B. Co.; 2 

Copp.Sl 283 

Dimcanson v. Southern Paoiflc K. B. Co.| 

11L.D.,6S8 178 

Donn V. Shepherd el al. ; 10 L. D., 139 87 

Emerson, Henry D. ; 20 L. D., 287 388 

Emert, Adolph; UL. D., 101 247 

English, Jacob E.; 10L.D..409 449 

Elliott, John J.; IL.D.,303 5 

Elli8,Jo«eph; 21L.D.,377 140 

Elson, William C.J eL.D.,797 2B0 

Eltingv. Terhnne; 18L. D. S86 14 

Etling etal.v. Potter ; 17 L. B., 424 574 

Evans, Henry C. ; 23L.D.,412 349 

Falconer V.Price; 19L.D., 107 265 

Famell et ai. v. Brown, on review ; 21 

L.D.,394 437 

Fanlkner v. HiUer ; 16 L. D., 130 86 

Fanll V. Lexington Townsite ; 15 L. B., 380, 421 

Ferrell et al. v. Hoge et al. ; 18 L. D., 81 . . . 508 

Finney v. Berger; 50 Cal., 249 57 

Fish V. Northern Pacific ; 23 L. D. , 15 23 

Florida Central and Peninsular B. B. Go. ; 

16L.D.,529 371 

Florida Navigation Co. v. Miller; 3 L. D., 

324 244 

Forward, James A.; 8 L.D., 528 86 

Fosgate v. Bell ; 14 L. D.,459 224 

Gallagher v. Jackson ; 20 L. D.. 389 86 

Gamble v. Northern Pacific B. B. Co.; 23 

L.D., 351- 372,446 

Ganger, Henry; 10 L. I).. 221 83,400 

Glacier v. Willis ; 127 U . S., 471 21 

Golden v. Cole's Heirs ; 16 L. D., 375 422 

Gonzales v. French ; 164 U. S., 338 582 

Goodalev. Olney; 12L.D., 324 848 

Goodale v, Olney, on review ; 13 L. D., 496. 86, 273 
Gowdy et al. v. The Kismet Gold Mining 

Co.; 22L.D., 624 266,349 

Grandin Bros, el a2. ; 18 L. D., 460 236 

Grandinv.LaBar; 23L.D., 301 412 

Graves, Alonso W. ; 1 1 L. D., 283 248 

Gray V. Ward el ol. ; 5L.D.,410 402 

Gregg et al. v. Colorado ; 15 L. D., 151 15 

Giegg el al. V. Lakey ; 17L.D.,60 292 

Griffard el al. v. Gardner ; 21 L. B., 274 . . . . 304 

Gregg v.Lakey; 16L.D..39 292,323 

Guernsey, S. Lizzie ; 22 L. B., 526 444 

Gnineau, Thomas ; 9 C. L. O., 153 587 

Habersham, F. E. ; 4L.B.,282 363 

Hall,L.B.; 5L.B.,141 572 

Hall/lal. V.Stone; 16L.B.,199 211 

Hamilton «. Harris; 18 L.B., 45 481 | 

Hannibal and St. Joseph B. B. Co. ; 10 

L.B.,610 396 j 

Hannon v. Northern Pacific B. B. Co. ; 11 ! 

L.B.,48 280 ! 

Hanscom V. Sines eloi.; 15L.B.,27 86 i 



Page. 

Happel V. Hamliue ; 21 L. B., 283 561 

Hardin, Frank P., etal.-, 1 L. B., 597 169 

Harrison, F. P. ; 2L.B.,767 138 

Hastings and Bakota B. B. Co. v. Grinnell 

etal.', 19L.B.,215 142 

Hastings and Bakota B. B. Co. v. Whit- 
ney; 132n.S.,357 86 

Hays, John W.; 8C.L.0., 21 504 

Heath V.Wallace; 138 U.S., 573 28 

Heiskellv.HcBowell; 23L.B.,63 585 

Hemsworth v. Holland ; 7 L. B., 76 572 

Hensley V. Waner; 24L.B.,92 423 

Herring v. Bailroad Company ; 110 IT. S., 27 126 

Herth, William; 22L.B.,385 274 

Heydenfeldt v. Baney Gold and Silver 

Mining Co.; 98 U.S.. 634 151 

Hoeft et al v. St. Paul and Buluth B. B. 

Co.; 15L. B.,101 453 

Hoflknan, Charles; 4L.B.,92 6 

Holmes V. Hockett; 14 L.B., 127 86 

Hopkins V. Daniels; 4L.B..126 46 

Home V. Smith ; 159 U. S., 40 893 

Houghton v.Junett; 4L.B.,238 863 

Honlton v. The Chicago, St. Paul, Minne- 
apolis and Omaha By. Co. ; 17 L. B., 487 . 897 

Howard, Prsstina B. ; 8 L. B., 286 182 

Hoxie V. Peckinpah ; 16 L. B., 108 810 

Hughes V. Tipton ; 2L.B.,834 863 

Hunv. GifiBn: 17 L. B.,162 317,501 

Huls.Clara; OL.B.,401 140 

Isaak, Christian; 9L.B.,624 449 

Jenkins etoLv. Breyfus ; 19 L. B., 272. ... 44 

Jeromeelal.; 12 L. B.,165 108 

Julien V. Hunter ; 18 L. B., 161 571 

Kellem v. Ludlow ; 10 L. B., 560 474 

Kelly,Patrick; IIL.B.,326 86,348 

Kamansklv. Biggs; 9L.B.,186 536 

Kimble, Fred W.; 20L. B.,67 809.467 

King V. Chicago, Milwaukee and St. Paul 

By. Co.; 17L.B.,167 631 

Kiser v. Keech el al. ; 7 L. B., 25 439 

Knight V. United States ; 142 U. S., 191 . . . 167 

Krichbaum V.Perry; 5L.B.,403 524 

La Bar v. Northern Pacific B. B. Co. ; 17 

L.B.,406 440,445 

Laird,Maggie; 13L. B.,502 86,224 

Lake Superior Ship, &c., Co. v. Cunning' 

ham; 155 U. S., 854 113 

Lamar, W.H.; 5L.B.,400 380 

Lansdale v. Baniels ; 100 U. S., 1 13 274 

Largent, Edward B., el al. ; 13 L. B., 307 . . 11 

Lawrence v. Phillips ; 6 L. B., 140 347, 399 

Legan v. Thomas el oZ. ; 4L.B.,441 5 

Leonard, Mary B.; 9 L.B., 189 449 

Lindback,JohnM.; 9L.B.,284 449 

Lipinski, Frank J. ; 13 L. B.. 439 561 

Littlepage v. Johnson ; 19 L. B., 312 65 

Littler. Bnrant; 3L.B.,74 278 

Long,Mack: 15L.B..579 481 

Manning, Patrick; 7 L.B., 144 ,. 346 



TABLE OF CASES CITED. 



XV 



Page. 

lIjUihewB V. fiarbarovie ; 18 L. D., 446. ... 474 

Mayenr. Dyer; 21L.D.,187 85 

McCallv.Molnar; 2L.D.,205 87 

KeCharlea «. Boberts ; 20 L. D., 564 263 

McCollam Fishing and Trading Co.; 23 

L.I).,7 314 

McCorroack v. Violet ; 21 L. D., 451 85 

McCreary v. Wert «t oZ. ; 21 L. D., 145. ... 88 

McCreery v. HaakeU ; 119 IT. S., 327 151 

McDonald ^oLv. Hartman et al. ; 10 L. D., 

547 85,409 

McDonald v.Jaramilla; IOL.D.,276 348 

McDoweU V. The Dallee Military Wagon 

KoadCo.; 22L.D., 599 202 

McEven v, Johnoon ; 23 L. D., 472 64 

McGowan v. McCann ; 15 L. D., 542 224 

McGrann, Owen ; 5L.D.,10 504 

McGr»th e<ai.; 20 L.D., 542 567 

McMichael v. Murphy etal.;2DL. D., 147 . 84 
McMichael v. Murphy et <U.t on review ; 20 

I..D., 535 86 

MoMicken, Herbert, et al. ; 11 L. D., 96. . . 394 

McXamara v. Orr et ol. ; 18 L. D., 504 84 

McTicar, James; 21L.D.,128 9 

McWeeney v. Greene ; 9 L. D., 38 273 

Medley v. Robertson etal.; 56 Cal., 396. . . 57 
Melon, John, et al. v. Lambard, Oryille D. ; 

51 Cal., 258 21 

Metcv. Seely; 21 L. D., 148 98 

Miles 9. Waller; 16L.D.,12 572 

Miller, John O., v. Northern Pacific B. R. 

Co.; IIL.D.,428 418 

Mills V.Daly; 17L.D., 346 86,211 

Miner, Abraham L. ; 9 L. D., 408 15 

Mining Co. v. Bullion Co. ; 1 Mont. M. R., 

114 21 

Missouri v. Kentucky ; 11 Walkice. 386 . . 374 
MJasouTi, etc., R. R. Co. v. Kansas Pacific 

R.R.Co.;97U.S., 497 31 

Moellev. Sherwood; 148 U.S., 21 412 

Mnlinariv. Soolari; 15L. D., 201 80,157 

Monroe et al v. Taylor ; 21 L. D., 284 96, 422 

Marrill v. iNorthem Pacific R. R. Co. ; 22 

L.D., 636 516 

Morris v.Oe Cells; 5lCal.,55 21 

Murphy V. Logan; 19 L. D., 478 322 

Kewell V. Petefish ; 20 L. D., 233 85 

Kew Orleans Canal and Banking Co. v. 

State of Lonisisna ; 5 L. D., 470 278, 490 

Newman, E.S.; 8 L. D., 448 348 

Kiven 9. State of California ; 6 L. D., 4r9. 57 

Northern Pacific R. R. Co. ; 15 L. D., 8. . . 41 

Northern Paclllc R. R. Co. ; 17 L. D., 404. 418 

Northern Pacific R. R. Co. ; 20 L. D., 191 . 121 
Norttiem Pacific R. R. Co., on review; 

20 L. D., 187 418 

Northern Pacific R. R. Co. ; 21 L. D., 412. 371 
Northern Pacific R. R. Co. v. Bass ; 14 L. 

D.,443 278,490 

Northern Pacific R. R. Co. v. Boms ; 6 L. 

D..21 121,819 

Northern Pacific R. R. Co. v. Crosswhite ; 

20L.D^W6 121 



Paga 
Northern Pacific R. R. Co. v. Holtz ; 22 L. 

D.,309 418 

Northern Pacific R. R. Co. v. MoMahon ; 

18L.D..435 516 

Northern Pacific R. R. Co. v. Miller: 7 L. 

D.,100 198 

Northern Pacific R. R. Co. v. Miller ; 11 L. 

D.,428 197,871 

Northern Pacific v. Patterson ; 155 U. S., 

130 141 

Northern Pacific R. R. Co. v. Sj^mons ; 22 

L.D.,686 121,319 

Northern Pacific R. R. Co. v. Walters et 

al.', 23L.D.,331 341 

O'Brien v. Northern Pacific R. R Co. ; 22 

L.D.,135 571,376,447 

0'Connerv.Hsll«Ca<.; 13L.D.,34 283 

Olney v. The Hastings ^ Dakota Ry. Co. ; 

IOL.D.,136 181 

Oregon and California R. R. Co. v. Bagley ; 

a3L.D.,392 5 

Oregon and California R. R. Co. v. Kuebel ; 

22L.D., 308 5 

Osbom V. Knight, on review ; 23 L. D., 216. 412 

Owens V. Gsuger ; 18 L. D., 6 84 

Pacific Ry. Co. v. United States ; 124 U. S., 

124 545 

Parsonsv. Ellis; 23 L D., 504 193 

Patton V. Kelley ; 11 L. I>., 409 83 

Paxton V. Owen ; 1(5 L. D., 540 300 

Peacock v. Shearer's Heirs ; 20 L. D., 218. 192 

Pearson, George W. ; 22 L. D., 471 334 

Peosley r . Whiting ; 18 L. D., 356 572 

Pence V. Gourley; 18 L. D., 358 60 

Penrose, William M. ; 5 L. D., 179 846 

Penwell r. Christian ; 23 L. D., 10 317, 501 

Pereirav. Jacks; 15 L. D., 273 15.57 

Perrott v. Connick ; 13 L. D., 598 84, 211 

Perry et al. v. Hasklns ; 23 L. D., 50 190 

Pfaffv. Williams; 4L.D.,455 348,431 

Phillips, Barney ; 1 L. D., 94 524 

Phillips V. Sioux City snd Pacific R. R. 

Co. ; 22 L. D., 341 374 

Pierce et al. v. Musser-Sanntry Co.; 19 

L.D., 136 44 

Pierce, Sarah E. ; 1 L. D., 59 536 

Pittsburg V. Danforth ; 56 N. H., 272 299 

Plaetkev. Central R. R. Co. ; IOL.D.,317. 113 
Piatt V. Union Pacific R. R. Co. ; 99 U. S., 

48 235 

Poole V . Moloughney ; 11 L. D., 197 224 

Pooler v. Johnston; 13 L. D., 134 572 

Pomeroy v. Wright ; 2 L. D., 164 429 

Porter V. Throop; 6L.D., 691 810 

Price, George; 12L.D.,162 330 

Qninn, Frank; 9L.D., 530 203 

Randolph, Simon ; 23 L. D., 820 404 

Rankin, John M. ; on re-review, 21 L. D., 

404 37,293 

Reed, JohnH.; 6L.D., 563 8 



XVI 



TABLE OF CASES CITED. 



ReeTea V. Emblen ; 8L.D.,444 276 

Kenop.Cole; 15L. D., 174 354 , 

Reynolds r. Cole; 5 L.D.. 555 572 , 

Kice r. Lensahek ; 13L.D., 154 348 

Richftidton v. Travpr ; 1 12 U. S. , 428 412 ! 

Rinda r. Northern Paciflo R. R. Co. e< oZ. ; 

19L.D.,184 278 j 

Ri ttwago V. HcCliutock ; 21 L. D., 267. . . . 804 | 

Roberts 0. Gordon ; 14L.D., 475 300 , 

Rosenbnrgr. Hale's Heirs; 9L.D., 161.. 283 ; 

Royee, Jamps R. ; 10 C. L. O., 25 587 

Rnmbley v. Causey ; IQ L. D., 266 431 

Rush ©.Bailey ; 16 L. 1)., 565 261 

Russell V. (xerold ; 10 L. D., 18 86 

Ryan et al. v. Carter et al. -, 93 U. S., 78 252 

Sachs V. Hastings and Dakota Ry. Co. ; 21 

L.D.,298 436 

Sawyer v. Northern Pacific R. R. Co., 12 

L.D.,448 445 

Sclirotberger v. Arnold ; 6 L. D., 425 86 

Schulenbcrg v. Harriman ; 21 Wall., 44. . . 113 

Sethnjauv.Clisc; 17L.D.,307 44,484 

Sevcry v. Vickford, on review ; 16 L. D., 

135 85 

Sbarpstein v. State of Washington; 13 L. 

I)., 378 108 

Shearer r. Rhone; 13L.D.,t80 572 

Sheets v. Sclden's Lessee; 2 Wallace, 177. 40 
Sliepley et al. v. Cowen et al. ; 91 U. S., 330. 118, 283 

Shields V. SCcDonald; 18 L. D., 478 342 

Sierra Lumber Co. ; 22 L. D., 690 58 

Silvi'nnan v. Northern Pacific R. R. Co. ; 

17L.D.,e3 571 

Simmons v. Wagner ; 1 1 Otto, 260 265 

Sioux City and Pacific R. R. Co. r. Wrich ; 

22L. D.. 515 166 

Sisemorc, William R. ; 18 L.I)., 441 59 

Smith. Alfred M.; 9L.D., 146 346 

Smith. HuldaM.; IIL.D., 382 108 

Smith r. Brearly ; 9 L. D., 175 53 

Smith P.Noble; IIL.D.,558 245 

Smith r. Townsend ; 140 U. S., 490 225 

Southern Pacific R. R. Co. v. Burlingame; 

5L.D.,415 57 

Southern Pacific R. R. Co. v. Stote of Cali- 
fornia; 4L.D.,437 365 

Southern Pacific R. R. Co. v. Sturm; 2 

L.D.,546 283 

Sparks, Alpha L; 20L. D.,75 247 

Sprattv. Edwards; 15L.D.,290 245 

Stark r. Starrs; 6 Wall., 402 266 

Starr r.Burk; 133IT.S.,54l 86 

Staples r . Richardson ; 16 L. D., 248 572 

State of Ca'.ifornia ; 23 L. D., 230 27 

State of California r. Sevoy ; 9 L. D., 139. 378,427 
State of Califumia r. Tnited States; 3 L. 

D.,521 27 

State of Dakota; 13L.D.,708 424 

SUte of Florida; 8L.D.,65 148 

State of Florida: 18L.D.,26 148 

Stateof Ohio; 3L.D.,571 240 

State of Ohio, on review ; 10 L. D., 394 . . . 152, 522 

State of Louisiana ; 3L. D.,396 239 

Stateof Mississippi; IOL.D.,393 152 



Page 

Slebbins v. Croke ; 14 L. D., 498 412 

Stewart et al. v. Roes etal.; 21 L. D., 446 . 21 

Stinchfleid r . Pierce ; 20 L. D., 12 263. 574 

St. Louis, &.C., Ry. «. McGee; HSU. 8., 

469 113 

St. Paul and Pacific R. R. Co. v. Northern 

Pacific R. R. Co. ; 139 U.S., 1 142 

St. Pani, Minneapolis and Manitoba Ry. 

Co. V. Lambeck^ 22L.D..202 376,440,447 

St. Paul, Minneapolis and Manitoba Ry. 

Co.; 20L.D., 22 545 

Sumner v. Roberts ; 23 L. D., 201 162, 189, 586 

Sutley, Will iara R. ; 3 L. D., 248 45 

Swanson v. Simmons ; 16 L. D., 44 86 

Sweeney r. Northern Pacific R. R. Co. ; 20 

L.D., 394 175 

Swims V. Ward; 13 L.D., 086 86 

Swift V. California and Oregon R. R. Co. ; 

2C.L.L., 738 881 

Tagg V. Jensen : 16L.D.,113 80,157 

Talkington's Heirs v. Hempfling; 2 L. D., 

46 53 

Taner v. The Heirs of Walter A. Mann ; 

4L.D., 433 183 

Taylor, Hugh; L.D., 305 154 

Taylor v. Rogers ; 12 L. D.. 694 203 

TennesMoe Coal. Iron and Railroad Co. 

etal; 23id..28 192 

Thomason V.Patterson; 18L. D.,241 399 

Thompson V. Ogden ; 14L. D.,65 283 

Thompson. William ; 10 L. D., 501 449 

TiUinghast v. Van Houten : 15 L. D., 394. 474 

Tomahawk v. Waldron ; 13 L. D., 683 312 

Tower, Charlemagne ; 2 L. D., 779 138 

Townsite v. Morgan et al. ; 21 L. D., 496. . 422 
Townsite of Kingfisher v. Wood; 11 L. D., 

330 236 

Tronnes v. St. Paul, Minneapolis and 

Manitoba R. R. Co. ; 18 L. D., 101 227 

Turner v. Bumgardner; 5 L. l).,377 300 

Turner v. Robinson ; 3 L. D., 562 433 

Tnstin V.Adams; 22 L.D.,266 300 

Tyler v.Emde; 12L. D.,94 316,536 

iriiulo V. Kline et al ; 9 L. D., 377 276 

Union Colony v. Fulmele; 16 L. D., 273 418 

Union Pacific R. R. Co. v. McKinley; 14 

L.D.,237 484 

Union Pacific R. R Co. v. Norton (on re- 
view); 19L.D.,524 44 

United States v. Benjamin; 21 Fed. Rep., 

285 169 

United States V. Bash ; 13L.D.,529 58 

United States v. California, etc., Land Co. ; 

148 U.S.. 31 412 

United SUtes v. Haggin ; 12 L. D., 34 437 

United States v. Schurz ; 102 U. S., 378. ... 201 

United States v. Smith ; 11 Fed. Rep., 487. 169 
Unite<l States v. Union Pacific R. R. Co.; 

91 U.S., 72 235 

Van Wyek v. Kue vals : 106 U. S., 360 113 

Walker v. Clayton ; 24 L. D., 79 157 



TABLE OP OVERRULED AND MODIFIED CASES. 



XVII 



Pag©. 
WtSker v. Snider, on review ; 19 L. D. , 467 . 86 

Warn 9. Field; 6 L. D., 236 429 

Warren et al. v. State of Colorado ; 14 L. 

D.,fl81 151 

Webb V. Lougbrey «( aZ. ; 9 L. D., 440 225 

Webster v. Lntber.- 163 U. S., 331 503 

Weed,Thurlow; SL.DmIOO 534 

Weeks v. Bridgeman ; 159 U. S., 541 . . 230. 365, 398 

Welch V. Duncan «< oi. ; 7 L. D., 186 474 

Werdenv. Scblecht; 20 L.D.,523 45 

Wbeeler, L. H. ; llL.D.,381 108 

Wfaitefordv. Johnson; 14L. D.,67 571 

White V.Dodge; 21 L.D., 494 437 

Whitney V. Maxwel] ; 2 L. D., 98 86 

Whitney o. Taylor ; 158 U. S., 85. . . 22, 142, 442, 517 
Wight V, Dubois et eU. ; 21 Fed. Rep., 093 . . 20 

Wilkins, Benjamin C. ; 2 L. D., 120 250 

Williams V.Clark: 12L.D.,178 348 



Pageu 
WillianiB V. United States; ^38 U. S., 514 201 

Witherspoon v. Duncan ; 4 Wall., 210 86. 141 

Wisconsin Central R. K. Co. ; 6 L. D., 190 113 
Wisconsin Central B. R. Co. ; 10 L. D., 63. 9 

Wisconsin Central R.R. Co. v. Forsythe; 

15rfU.S.,46 10 

Wisconsin Central R. R. v. Price Co. ; 138 

U.S., 496 141,174 

WiBCousin R. R. Co. ; 5 L. D. 81 113 

Wolsey V. Chapman , 101 U. S., 755 284 

Welters, Charles; 8 L. D., 131 534 

Woodson et ai. v. Johnson etal.; 22 L. D., 

102 567 

Wooten,JohnT.; 5L.D., 389 454 

Wright 9. Larson; 7L.D., 555 273,355 

Wright v. Roseberry; 121 U.S., 488 28 

Wurlitzer, Rudolph ; 6 L. D., 315 230 



TABIiE OF OVERRUIiEB AN1> MODIFIEB CASES. 



[From Vol. 1 to 24, inclnsiyo.] 



Aldrich v. Anderson (2 L. D., 71) ; overruled, 15 

L. D., 201. 
Anderson v. Tannebill et al. (10 L. D., 388) ; over- 
ruled, 18 L. D., 586. 
Bailey, John W., «< al. (3 L. D., 386) ; modified, 5 

L.D.,613. 
Baker v. Hurst (7 L. D., 457) ; overruled, 8 L. D., 

110. 
Barlow, S. L. M. (5 L. D., 695) ; modified, 6 L. D., 

648. 
Barich v. Kennedy (3 L. D., 437) ; modified, 6 L. D., 

217. 
Bivins v. Shelley (2 L. D., 282) ; modified, 4 L. D., 

583. 
Blenkner v. Sloggy (2 L. D., 267) ; modified, 6 L. 

D., 217. 
Bosch, Gottlieb (8 L. D., 45) ; overruled, 13 L. D., 

42. 
Box V. Ulstein (3 L. D., 143) ; modified, 6 L. D., 

217. 
Brady v. Southern Pacific R. R. Co. (5 L. D., 407 

and 658) ; overruled, 20 L. D.. 250. 
Bradstreet et al. v. Rehm (21 L. D.. 30) ; reversed 

on review, id., 544. 
Bundy v. Livingston (1 L. D., 152); overruled, 6 

L. D., 284. 
Burkholder v. Skagen (4 L. D., 106) ; overruled, 

L. D., 153. 
Buttery v. Sprout (2 L. D., 293) ; overruled, 5 L. 

D., 501. 
Cagle V. Mendenhall (20 L. D., 447) ; overruled, 23 

L. D., 533. 
California, State of (15 L. D., 10) ; overruled, 23 L. 

D., 423. 
California, State of (14 L. D., 253) ; vacated on re- 
view, 23 L. D., 230. 
Call V. Swaim (3 L. D., 46) ; overruled, 18 L. D., 

373. 
Cai^teDo v. Bonnie (20 L. D., 811); overruled, 22 

L. D., 174. 



Central Pacific R. R.Co. v. Orr (2 L. D., 525) ; over- 

ruled, 11 L. D.. 445 
Christoffierson, Peter (8 L. D., 329) ; modified, 6 L. 

D.. 284, 624. 
Colorado, State of (7 L. D., 490) ; overmled, 9 L. 

D., 408. 
Cornell v. Chilton (1 L. D., 153) ; overruled, 6 L. 

D.. 483. 
Crowston r. Seal (5 L. D., 213) ; overruled, 18 L. 

D., 586. 
Dakota Central R. R. Co v. Downey (8 L. D., 115) ; 

modified, 20 L. D.. 131. 
Devoe, Lixzie A. (5 L. D., 4) ; modified, 6 L. D., 

429. 
Dudymottv. Kansas Pacific R. R. Co. (6 C. L. 0., 

69) ; overruled, 1 L. D., 345. 
* Elliott V. Ryan (7 L. D., 322) ; overruled, 8 L. D., 

110. 
Emblen v. Weed (16 L. D., 28) ; overruled, 17 L. 

D., 220. 
Bpley V. Trick (8 L. D., 110) ; overruled, 9 L. D., 

359. 
Ewing V, Rickard (1 L. D., 146) ; overruled, 6 L. 

D,483. 
Falconer v. Price (19 L D., 167) ; overruled, 24 L. 

D., 264. 
Fish, Mary (10 L. D., 606) ; modified, 13 L. D., 511. 
Fitch V.Sioux City and Pacific R. R. Co. (216 L. 

and R., 184) ; overruled, 17 L. D., 43. 
Fleming v. Bowe (18 L. D., 78) ; overruled, 23 L. D., 

175. 
Florida Rwy. and Navigation Co. v. Miller (3 L. 

D., 324); modified (6 L D., 716); overruled, 9 

L.D., 237. 
Florida, State of (17 L. D., 355) ; reversed on re- 
view, 19 L. D., 76. 
Forgeot, Margaret (7 L. D., 280) ; overruled, 10 

L. D., 629. 
Freeman v. Texas Pacific R. R. Co. (2 L. D., 550) ; 

overmled, 7 L. D., 18. 



*The cases marked with a star ire now authority. See Hessong v. Burgan, 9 L. D., 358. 

10671— VOL 24 II 



XVIII 



TABLE OF OVERRULED AND MODIFIED OASES. 



Gallilier, Maria (8 C. L. O., 57) ; overruled, 1 L. D., 

57. 
Garrett, Joshua (2 C. L. O., 1005) ; overruled, 5 

L. D., 158. 
Gates V. California and Oregon B. R. Co. (5 C. L. O., 

150) i overruled, 1 L. D., 830. 
Gauger, flenry (10 L. D., 221) ; overruled, 24 L. D., 

81. 
Gohrman v. Ford (8 C. L. O., 6) ; overruled, 4 L. D., 

580. 
Grinnell v. Southern Pacific R. R Co. (22 L. D., 

438) { vacated on review. 23 L. D., 480. 
Gulf and Ship Island R R. Co. (16 L. D., 236) ; mod- 
ified on review, 10 L. D., 534. 
Hardin, James A. (10 L. D., 313); recalled and 

revoked, 14 L. D., 233. 
Harrison, Luther (4 L. D., 179); overruled, 17 

L. P., 216. 
Heilman r. Sy verson (15 L. D., 184) ; overruled. 23 

L. D., 110. 
Hickey, M.A. and Edward (3 L. D., 83) ; modified, 

5L.D., 256. 
Holland, G. W. (6 L. D.,20); overruled, 6 L.D., 

639, and 12 L. D., 436. 
Hooper, Henry (6 L. D., 624) ; modified, 9 L. D., 

86,284. 
Huls, Clara (0 L. D., 401) ; modified, 21 X.. D., 377. 



Mather et al. v. Hackley's Heirs (15 L. D., 487) ; 

vacated on review, 19 L. D., 48. 
Meyer, Peter (6 L. D., 639) ; modified, 12 L. D.. 430. 
Morgan v. Craig (10 C. L. O., 234); overruled, 5 

L. I)., 303. 
Northern Pacific R. R. Co. (20 L. D,, 191) ; modi- 
fled, 22 L. D., 224. 
Northern Pacific R. R. Co. v. Bowman (7 L. D., 

238) ; modified, 18 L. D.. 224. 
Northern Pacific R. R, Co. v. Bums (6 L. D., 21) ; 

overruled, 20 L. D., 191. 
Northern Pacific R. R. Co. v. Miller (7 L. D., 100) ; 

overruled, 16 L. D., 229. 
Northern Pacific R. R. Co. v. Yantis (8 L. D.. 58) ; 

overruled, 12 L. D., 127- 
Nj'man v. St. Paul, Minneapolis and Manitoba 

Rwy. Co. (5 L. D., 396) ; overruled, 6 L. D., 750. 
Oregon Central Military Wagon Road C^. v. Hart 

(17 L. D., 480) ; overruled, 18 L. D., 543. 
Papina v. Alderson (1 B. L. P., 91); modified, 5 

L. D., 256. 
Patterson, Charles £. (3 L. D., 260) ; modified, 6 

L. D.. 284, 624. 
Pecos Irrigation and Improvement Co. (IS L. D., 

470) ; overruled, see 18 L. D., 168 and 268. 
Phelps, W. L. (8 C. L. O., 139) ; overruled, 2 L. D., 

854. 



Hyde et al. v. Warren et aL (14 L. D., 576) ; see 19 Phillips, Alonzo (2 L. D., 321); overruled, 15 L. 

D..424. 
Pike s Peak Lode (14 L. D., 47) ; overruled, 20 L. 
D., 204. 

Popple. James (12 L. D., 433) ; overruled, 13 L. D., 

588. 
Powell, D. C. (6 L. D.. 302) ; modified, 15 L. D., 477. 
Rancho, Allaal (1 L. D.. 173) ; overruled, 5 L. D., 

320. 
Rankin, John M. (20 L. D., 272) ; reversed on re- 
view. 21 L. D., 404. 
* Reed v. Buffington (7 L. D., 164) ; overnileil, 8 

L. D., 110. 
Rico Townsite (1 L. D., 556) ; modified, 5 L. D., 256. 
Robinson, Stella G. (12 L. D., 443) ; overruled, 13 

L. D., 1. 
Rogers, Horace B. (10 L. D., 29) ; overruled, 14 L. 

D., 321. 
Rogers v. Atlantic and Pacific R. R. Co. (6 L. D., 

565) : overruled, 8 L. D., 165. 
'Rogers v. Lukens (6 L. D., Ill) ; overruled. 8 L. 

D.. 110. 
St. Paul. Minneapolis and Manitoba Rwy. Co. \9 

L. D., 255) : modified, 13 L. D., 354. 
Sayles, Henry P. (2 L. D., 88) : modified, 6 L. D., 

797. 
Serrano v. Southern Pacific R. R. Co. (6 C. L.O., 

93) ; overruled, 1 L. D., 380. 
Shanley v. Moran (1 L. D., 162): overruled, 15 L. 

D.. 424. 
Shineberger, Joseph (8 L.D., 231); overruled. 9 

L. D..202. 
Sipchon V. Ross (1 L. D., 634) ; modified, 4 L. D., 

152. 
Southern Pacific R. R. Clk). (15 L. D., 460) ; re- 
versed on review, 18 L. D., 275. 
Spencer, James (6 L. D., 217) ; modified, 6 L. D., 

772, and 8 L. D., 467. 



L.D., 64. 
Jones, James A. (3 L.I)., 176) ; overruled. 8 L. D., 

448. 
Jones V. Kennett (6 L. D., 688) ; overruled, 14 L. 

D., 429. 
Kackman, Peter (1 L. D., 86) ; overruleil. 16 L. D., 

464. 
Kemper v. St Paul nnd Pacific R. R. Co. (2 C. L. L., 

805) ; overruled, 18 L. D., 101. 
Riser v. Keech (7 L. D., 25) ; overruled, 23 L. D., 

119. 
Kniskem v. Hastings and Dakota Rwy. Co. (6 

C. L. ()., 60) ; overruled, 1 L. D., 362. 
Laselle v. Missouri, Kansas and Texas Rwy. Co. 

(3 C. L. O., 10) ; overruled, 14 L. D., 278. 
Laughlin v. Martin (18 L. D., 112) ; modified, 21 

L. D., 40. 
I.jeonard. Sarah (1 L. D., 41); overruled, 16 L. D., 

464. 
Lindberg, AnnaC. (3 L. D., 95) ; modified, 4 L. D., 

209. 
Linderman v. Wait (6 L. D., 689) : overruled, 13 

L.D.,450. 
Lock wood, Francis A. (20 L. D., 361) ; modified, 21 

L. D., 200. 
Louisiana, State of (8 L D., 126) ; modified on re- 
view, 9 L.D., 157. 
Lynch, Patrick (7 L. D.. 33) ; overruled, 13 L. D., 

713. 
Mnughan, (xeorge W. (1 L. D., 25) ; overruled, 7 

L. B.. 94. 
McGrann, Owen (5 L. D.,10) ; overmled, 24 L. D., 

502. 
McKemau v. Bailey (16 L. D., 368) ; overruled, 17 

L. D., 494. 
McNamara et al. v. State of California (17 L. D., 

296) ; overruled. 22 L. D., 666. 



* The cases marked with a star are now authority. See Hessong v. Burgan, 9 L. t>., 353. 



CIRCULARS AND INSTRUCTIONS CITED, CONSTRUED, ETC. XIX 



State of California v. Pierce (3 C. L. O., 118); 

modified, 2 L.D., 854. 
State of California v. Smith (5 L. D., 543) ; over- 

mled, 18 L. D., 343. 
Strieker. Lizzie (15 L. D., 74) ; overruled, 18 L. D., 

283. 
Sweeten v. Steranson (3 L. D., 249) ; overruled, 3 

L.D., 248. 
Taft V. Chapin (14 L. B., 593) ; overmled, 17 L. D., 

414. 
Talkington's Heirs v. Hempfling(2 L. D.. 46); 

overmled, 14 L. D., 200. 
Tate, Sarah J. (10 L. D., 400) ; overruled, 21 L. D., 

211. 
Taylor v. Yatea et aZ. (8 L.D., 270) ; reversed on 

review. 10 L. D., 242. 
Traugh v. Ernst (2 L. D., 212) ; overmled, 3 L. D., 

218. 
Tripp V. Stewart (7 G. L. O., 39) ; modified, 6 L. B., 

795. 
Tapper v. Schwarz (2 L. D., 823) ; overmled, 6 L. 

D.,623. 
Tuner v. Lang (t C. L. 0.,61) ; modified, 5 L. D., 

256. 
Turner v. Cartwright (17 L. D., 414) ; modified, 21 

L.D.,40. 



United States v. Bush (13 L. D., 529) ; overruled, 

18L.D.,441. 
Vine, James (14 L. D., 527) ; modified, 4 L. D., 622. 
Walker v. Prosser (17 L. D., 85); reversed on re- 
view, 18 L. D., 425. 
Walters, David (15 L. B., 136) ; decision revoked, 

24L.D..58. 
Waterbouse, William W. (0 L. D., 131) ; overruled, 

18L.B.,586. 
Watson, Thomaa E. (4 L. B., 160) ; modified, C L. 

D.,71. 
Weber, Peter (7 L. B., 476) ; overruled on review, 

9 L. B., 150. 
Werden v. Schlecht (20 L. B., 523) ; overruled. 24 

L. B., 45. 
Wiokstrom v. C^alkins (20 L. B., 459) ; modified, 21 

L. B., 568. 
Wicketrom v. Calkins (20 L. B., 459) ; overruled, 

22 L. B., 392. 
Wilkins, Benjamin C. (2 L. B., 120); modified, 6 

L. B., 797. 
Willamette Valley and Caacade Mountain Wagon 

Road Co. V. CJhapman (13 L. B., 61) ; overruled, 

20 L. B., 259. 
Willingbeck, Christian P. (3 L. B., 383) ; modified, 

5L.Bm408. 



TABI.E OF CIRCTJI^ARS A:NT> INSTRUCTIONS. 



Page. 

May 27, 1891.— State selections 548 

Febmaiy 23, 1897.— Timber cutting 167 

February 25, 1897.-011 lands 183 

February 25, 1897.— Greer County, Okla. . 184 

March 11, 1897.— Mining claim; notice... 266 
March 22, 1897 — Mississippi swamp list 

No. 7; act of February 17, 1897 267 

April 9, 1897.— Railroad selections, non- 
mineral proof 321 

May 10, 1897.— Railroad selections, non- 
mineral proof 416 



Page. 
June 5, 1897.— Unearned fees and onoffioial 

moneys B06 

June 17, 1897.— State selections 553 

June 25, 1807.- Commissioners of circuit 

courts and U. S. Commissioners 664 

June 29, 1897.— Timber cutting; exporta- 
tion 587 

June 30, 1897.— Survey of forest reserves . 588 

June 30, 1897.— Forest reserves 589 



CLKCUIiARS ANjy INSTRUCTIONS CITED, CONSTRUED, ANB 

MOBIFIEB. 



Page. 
Jnne 30, 1882.— Timber cutting; 1 L. B., 

697 100 

July 31, 1882.— Coal landa, par. 13 ; 1 L. B., 

689 11 

▲ngnat 7, 1882.— Timber cutting; 1 L. B., 

60O 170 

October 12, 1882.— Timber cutting; 1 L. 

B..696 170 

May 31, 1884.— Indian occupancy ; 3 L. B., 

71 414 

August 4, 1886.— Indemnity selections ; 4 

L.B.,90 371,447 ! 

December 15, 1885.— Attorney, sec. 13; 4 

L.B., 297. modified 45 

May 7, 1886.— Timber cutting; 4 L. B., 

521 170 

August 5, 1886.— Timber cutting; 5 L. B., 

129, modified 170 



Page. 
October 26, 1887.— Indian occupancy; 6 L. 

B.,541 414 

June 27, 1887.— Timber culture, par. 22; 6 

L.B., 284 449 

March 8, 1889.— Additional homestead; 8 

L.B., 314 24 

September 15, 1890.— Employes of Land 

Bept.; IIL.B.,96 894 

June 3, 1891.— Alaskan lands, par. 13 ; 12 

L.B., 583 >. 646 

December 10, 1891.— Mining regulations ; 

par. 29, amended 191,266 

February 6, 1892.— Repayment, Gen. Cir., 

p. 86 257 

March 30, 1893.— Motions for review; 16 

L.B.,834 85 

March 31, 1893.— Oklahoma townsite ; 16 

L.B.,341 366 



XX 



ACTS OP CONGRESS CITED AND CONSTRUED. 



Page. 
July 0, 1894.— R. R. and State aelectiona Id 

mineral belt; 10L.D., 21 821,416 

October 16, 1894.— Soldiers' additional 

homestead; 19L.D.,302 502 

November 22, 1894.— Selection of desert 

lands by States, par. 4 ; 20 L. D.. 440 564 

November 30, 1894.~Oklahoma townsite ; 

19L.D., 334 867 

]£ay 14, 1895.— Unearned fees and nnoffi- 

cialmoneys; 23L.D.,572 606 



Page. 
May 18. 1805.— Kickapoo Indian lands; 20 

L.D., 470 01 

October 30, 1805.— ftepajnment, Gen. Oir.. 255,257 
Jntae 15, 1806.— Indian allotments; 22 L. 

D..709.. 425 

December 26, 1806.— Uneameii fees and 

unofficial moneys : 23 L. D., 573 505 



ACTS OF CONGIIE88 CITED AND CONSTRUED. 



Page. 

February 20, 1811 (2 Stat., 641), sec. 5, pro- 
ceeds of Louisiana lands 231 

Mars, 1822 (8 SUt, 700), Florida private 
claims 206 

March 3, 1833 (3 Stat., 754), Florida pri- 
vate claims 206 

February 28. 1824 (4 Stat., 6), Florida pri- 
vate claims 206 

January 12, 1825 (4 Stat., 80), repayment. 540 

May 20, 1826 (4 Stat.. 179), school land. ... 106 

February 8, 1827 (4 Stat., 202), Florida pri- 
vate claims 207 

May24, 1828(4Stat., 305),Ohlocanal grant. 522 

May 26, 1830 (4 Stat., 405), Florida private 
claims 205 

July 7, 1838 (5 Stat., 802). Perrine grant. . 100 

February 18, 1841 (6 Stat., 810), Perrine 
grant Ill 

September 8. 1841 (5 Stat., 453), proceeds 
of public lands 230 

March 1. 1845 (5 SUt., 707). Texas 378 

March 3, 1845 (5 Stat., 788), Florida school 
grant 151 

December 29, 1845 (0 Stat., 108), Texas ... 373 

July 5, 1848 (9 Stat., 245), Texas 373 

March 2, 1849 (9 Stat., 352), Louisiana 
swamp grant 231 

March 3, 1849 (9 Stat., 895), sec. 3, Interior 
Dept 107 

September 27, 1850 (9 Stat., 486), sec. 5, 
donation 5 

September 28, 1850 (0 Stat., 519), swamp 
grant 26,68,147,231,522 

February 14, 1858 (10 Stat, 158), donation . 5 

March 2, 1853 (10 SUt., 172), sec. 20, school 
land 107 

March 3, 1853 ( 10 Stat., 244), school laud. . 15 

July 22, 1854 (10 Sut., 808), sec. 8. private 
claims 2 

August 3, 1854 ( 10 SUt., 346) certification . 228, 

864,896 

January 22, 1855 (12 Stat., 927) Indian 
treaty 509 

March 2, 1855 (10 SUt, 634), swamp indem- 
nity 231 

March 3, 1855 (10 SUt., 701), bounty land 
warrant 480 

May 15, 1856 (11 SUt, 0), sec. 4, Cedar 
Rapids B. R. grant 125 

June 8. 1856 (11 Stat., 20), C, St P., M. & 
O. By. grant 9,256 



Pago. 
March 8, 1857 (11 Stat., 195), St. Paul and 

Pao. grant 340 

March 3, 1857 (11 SUt, 251), swamp selec- 
tions 163,231 

February 14, 1859 (11 SUt., 384), salt 

springs 116 

February 28, 1859 (11 SUt. 885),, school 

land .'.... 12,107,582 

February 28, 1850 (11 Stat., 887), repay- 
ment 540 

June 22, 1860 (12 SUt, 85), privaU oUims . 206 
December 17, 1860 (12 SUt., 124), salt 

springs 116 

March 2, 1861 (12 SUt., 239), DakoU or- 
ganic act 628 

November 15,1861 (12 SUt., 1101), Indian 

treaty 613 

July 1, 1862 (12 SUt, 489), sec. 14, Sioux 

City & Pao. grant 29 

May 5, 1864 (13 Stat., 64), Lake Superior 

and Miss. R. R. grant 320 

May 6, 1864 (13 SUt, 66), Wis. Central 

grant 256 

sec. 4, Wis. 
H.R.grant. 

May 12, 1864 (13 SUt., 72), R. R. grant. ... 168 
June 2, 1864 (13 SUt., 95), sec. 4, Cedar 

Rapids R. R. grant 135 

July 2. 1864 (13 SUt. 356), sec. 17, Sioux 

City & Pao. grant 29 

July 2, 1864 (13 SUt, 365), Nor. Pao. grant. 839 

sec. 3 820 

seo. 6, Nor. Pac. 

grant 160 

July 22, 1866 (14 SUt., 338), R. R. ^rant. . 274 
July 23. 1866 (14 SUt, 210), St. Joe & 

Denver grant 64 

July 23, 1806 (14 SUt, 218), seo. 4, CaL 

swamp land 27,69 

July 25, 1866 (14 SUt, 239), Oregon & Cal. 

R.R 4 

sec. 2, Oregon 
and Califor- 
nia grant.. 381 
July 27,1866 (14 SUt, 204), sec. 3. South- 
em Pao. grant 173 

February 25, 1667 (14 SUt, 409), wagon- 
road grant 202 

February 27, 1807 (15 SUt, 581), Indian 
treaty 518 



ACTS OF CONGRESS CITED AND CONSTRUED. 



XXI 



Page- 
March 2, 1887 (14 Stot., 544), private 

olaimis 208 

ApTn28, ises (15Stat , 68S), Indian treaty. 529 
April 10, 1869 (16 Stat.. 55), Osage ceded 

landa 6 

April 28, 1870 (16 Stat, »3). Nebraska .... 374 
March 3, 1871 (16 SUt.,579), sec 23, Sonth- 

em Pac. grant 173 

March 3, 1871 (16 Stat, 588), St. P., M. and 

M. K.It. grant 141.195,227 

JnnelO, 1872 (17 Stat, 378), private claims. 208 
June 22, 1874 (18 Stat.. 194), R. R. iodem. 

nity 381,645 

Jnne 22, 1874 (18 Stat., 203), St. P.. M.and 

M. grant 226 

March 3, 1875 (18 Stat, 482), R. R.rightof 

way 460 

April 21, 1876 (19Stat,35). sec. l.R.R. with- 
drawals 121 

sec. 2 110,818 

Aagnst 11, 1876 (19 Stat, 27), Osage ceded 

lands 7 

January 12. 1877 (19Stat. 221), salinelands 116 
March 3, 1877 (19 Stat., 377), desert land . . 308, 

4%, 467, 577 

March 3. 1877 (19 Stat.. 382), townsite 261, 530 

Jane 3^ 1878 (20 Stat, 88), timber cutting. . 167 
JnneS, 1878 (20 Stat, 80) , timber and stone 

act 88,144,167,310,352,360,376,426 

Jnne 14 1878 (20 Stat.. 113). timber culture 280, 448 
May 14, 1880 (21 SUt, 140), sec. 1, relin- 

qnishment 495 
sec.2oonte8t- 

ant.... 90,221,295 
sac. 3, hd. set- 
tler... 181,183,523 
May 28, 1880 (21 Stat, 148), Osage land. . . 68 
Jane 8, 1880 (21 SUt., 166), inaane entry- 
man 495 

Jnne 15. 1880 (21 Stat, 287), sec 2, home- 
stead 36,58,229 

Jane 16, 1880 (21 Stat., 287), sec. 2, repay- 
ment 247, 255, 309, 408, 537, 539, 542. 575 

March 3, 1881 (21 Stat.. 511), hd., residence 524 
July 4, 1884 (23 SUt, 89). Mille Lac lands . 490 
Jnly 4, 1884 (23 SUt., 96), Indian home- 

ateod 216 

Jnly 5, 1884 (28 SUt, 103), aband. mil. res. 271, 336 
March 3, 1885 (23 SUt, 340), Indian lands. 826 
April 17, 1885 (23 SUt., 844), Crow Creek 

laaidB 529 

Febmary 8, 1887 (24 SUt., 388). Indian 

allotmenU 214,311,424,511 

Pebroary 8. 1887 (24 SUt, 388), sec. 4 264 

March 3, 1887 (24 Sut, 550), reimbnrse- 

menU for railroad landa 64 

March 3, 1887 (24 SUt, 566), a^ustment of 

R.R.granto 441 I 

sec. 5 42, 

164,172,256,409,482 
October 19, 1888 (25 SUt. 612), Indian 

lands 284 

January 14, 1880 (25 SUt, 642), Mille Lac 

lands '. 490 

January 14, 1889 (25 SUt.. 642), sec. 5 517 



Paoa 
February 22, 1889 (25 SUt, 676), seca. 10 

and 11, HchoollaDdH 12,106,548,553 

February 22, 1889 (25 SUt., 676), sees. 16 

and 18, SUU selections 486 

February 22, 1889 (25 SUt., 676), «ecs. 18 

and 19 549 

March 2, 1889 (25 SUt., 888), sec. 8, Sioux 

Indian lands 330 

March 2. 1880 (25 SUt, 888), sees. 16 and 23, 

Indian lands 528 

March 2, 1889 (25 SUt., 854), sec. 2. second 

entry 279,561 

March 2, 1889 (25 SUt., 854). sec. 3, leave 

of absence 79 

March 2, 1889 (25 Stat., 854), sec. 6, add'l 

hd 28.409 

March 2, 1889 (25 SUt., 980), sec. 14. Okl. 

land 301 

May 2, 1890 (26 SUt., 81) , sec. 20, Okl. hd . 242 

sec. 21, commuU- 

tion 186,305 

sec. 22, commn- 
Ution for town 

site 186 

sec. 23. highway 
reser ration . . . 160 
May 14, 1890 (26 SUt, 100), Okl. town sites 366, 

470.580,583 
May 26. 1890 (26 Stat., 121), preUminary 

affidavit and final proofs 307,443 

June 20, 1 800 (26 SUt, 169) , resorvoir lands 465 
Jnly 3, 1890 (26 SUt, 215), sec. 11, admis 

sionof Idaho 272 

September 20, 1880 (26 SUt, 496), forfeiture 

R • R • 

lands.. 10 

sec. 3.... 406 

sec. 4 434 

Febr nary 13, 1891 (26 SUt , 749) , Okl. lands . 302 
January 12, 1891 (26 SUt, 712), Southern 

Pac 548 

February 28, 1891 (26 SUt., 794), Indian 

allotmenU 214,311,424 

February 28, 1891 (26 SUt., 796), school 

lands 12,15,106,423.548,553 

March M. 1891 (26 SUt.. 854), private claims. 1 

March3, 1891(26Stat.,98».1016),Okl. lands. 92 

sec. 16, 
Okl. hd. 242 
Manh 3. 1891 (26 SUt, 1093), timber out- 
ting 505 

March 3, 1891 (26 SUt., 1095), sec. 1, timb«>r- 

culture en- 
try.... 387,434,448 
sec. 2, desert 

land 100, 

306,435,406 
sec. 5, hd. en- 
try 80, 

157, 242. 343 
sec. 6, com- 
muted hd.. 852 
sec. 7, con- 
firmation . . 53, 
58. 139, 493 



XXII 



REVISED STATUTES, CITED AND CONSTRUED. 



Page. 
March 3, 1881 (26 Stat., 1095), flees. 12, 18, 

and 14, 
Alaska.... 312, 
314,545 
sees. 18 and 
21. right of 

way 56,5C0 

sec. 24. for- 
est reserre. 588,589 
June 17, 1802 (27 Stat., 52), Klamath Res- 

e ry ation 26 

August 4, 1892 (27 SUt.. 848), timber and 

stone land 167.403 

March 3, 1893 (27 Stat., 593), timber cul- 
ture 448 

sold addl . 292 
March 3, 1893 (27 Stot., 612), Cherokee Out- 
let 286,421 

December 19. 1883 (28 Stiit., 576), Mille Lac 

lands 489 

Februar7l0,1884(28Stat.,87)add'Ihd... 91 ' 

J nne 6, 1884 (28 Stat., 987), for the relief of 

Wesley Montgomery 390 I 

July 26, 1894 (28 Stat., 123), extension of , 

time on entries 398,435 

August 4, 1894 (28 SUt., 226), extension of 

timeonentries 487 

August 15, 1894 (28 Stat., 286), alienation 

of IndianlandH 511 

August 18, 1884 (28 Stat., 372-422), desert 

lands 526 

August 18, 1894 (28 Stat.. 372), sec. 4, State 
selections of desert land 66 



Page. 
August 18, 1894 (28 Stot.. 384), survey; 

Stotti selections 122 

August 18, 1894 (28 SUt.. 397), solds. 

addl 35,291,502 

August 23, 18^ (26 Stat., 401), aban'dmil. 

res 268,835 

January 26. 1886 (28 Stot., 641), patent for 

Indian lands 214,285 

February 26, 1886 (28 Stot., 687), isolated 

trrct 286 

March 2, 1885 (28 Stot., 888), OkL school 

laud 91 

January 28, 1886 (28 Stot., 4), railroad 

lands 406 

February 26, 1896 (29 Stot., 17), Chippewa 

pine lands 517 

March 4, 1896(29 Stot.. 43), timber culture, 

final proof 448 

May 14, 1896 (29 Stat., 120), right of way. 560 
May 26, 1896 (29 Stot., 184^, sec. 9, comr s 

of circuit court 564 

June 3, 1896 (29 Stot., 187), commuted hd. 351 

June 11 , 1886 (28 Stot., 434), snr^'ey 123 

January 18, 1887 (28 Stot., 490). Greer 

County, Okl 184 

February 11 , 1897 (29 Stot., 526), oil lands. 183 
February 17, 1887 (28 Stot., 534), Miss. 

swamp list 267 

February 24, 1887 (28 Stot, 595), forest 

fires 590 

June 4, 1897 ( ), forest reser- 
vations 588,589 



REVISEB STATUTES, CITEB AND CONSTRUED. 



Page. 

Section 441 107 

Section 452 398 

Section 453 122 

Sections 460-61 415 

Section 1839 529 

Section 1851 529 

Section 2218 122 

SecUons 2223-34 385 

Section 2238 66,544 

Section 2264 578 

Section 2265 523 

Section 2275 12,15,106,548,582 

Section 2276 12,106,423,548 

Section 2289 154,243,250,343 

SecUon2280 80,157 

Section 2291 80,157,183,185,400,502 

Section 2297 522 

Section 2301 80 

Section 2304 39,475,561 

Section 2305 502 

SeoUon2306 36,291,502 



Page. 

Section 2307 473,562 

Section 2308 38.562 

Section 2318 176,574 

Section 2318 176 

SecUon2324 575 

Section 2325 20,101,395 

Section 2332 18 

Section 2347 11 

Section 2348 48 

Section 2350 48 

Section 2357 160 

Section 2362 1 257,538,575 

Sections 2380-81 406 

Sections 2887-9 186,580 

Sections 2388-8 258 

Section 2448 (act of Augusts. 1K54) 228, 

364,396,486 

Section 2456 286 

Section 2461 168 

Section 2488 27,69 

Section 8689 540 



RULES OF PRACTICE CITED AND CONSTRUED. 



XXlll 



BUIiES OF PRACTICE CITBB ANT) COlSrSTBUED. 



Rule 9.. 
Rale 14. 
Rale 22. 
Role 35. 



Page. 

W 

861 

r 88 

5M 

Ra]e48 244,385 

Rule 54 90 

Rule56 90 

Role 73 203 

Rule 76 402 

Role 79 388 

Role 82 231 



Rule85 386 

Rale 86 277 

Rale 87 823,472 

Rale88 231,490 

Rale 90 231 

Role 93 230,323,402 

Bale 94 490 

Rale 96 490 

Rale 104 277 

Rule 106 277 



DECISIONS 



RRLATING TO 



THE PUBLIC LA^ISTDS 



private land crjlaims-trkaty reservation. 

Joseph Farb. 

By the terms of the treatieH between tht^ United States and the Repablic of Mexico, 
all lands embraced within the boundarieH of Mexican or Spanish grants^ at thd 
date said treaties were ratified, were placed in a state of reservation for the 
ascertainment of rights claimed under said grants, and by the act of March 3, 
1891, said reservation is continae<l in force, and will so remain until final action 
is taken on the respective claims or grants affected thereby. 

Secretary Francut to the Commissioner of the General Land Office, Jan^ 
(I. H. L.) uary 8, 1897. ( W. M. W.) 

The case of Joseph Farr has been considered on his appeal from 
your office decision of August 21, 1895, rejecting his application to 
enter under the homestead law the E. J of the NW. \, and lots 1 and 
2 of Sec. 30, T. 9 N., R. 3 E., Santa Fe, New Mexico, land district. 

On September 12, 1894, Farr made an application to enter the land 
in question under the homestead law. 

On September 14, 1894, the register and receiver rejected said appli- 
cation, for the reason — 

that the land applied for was withdrawn fVom entry on June 2, 1886, by the Hon. 
Commissioner, it being within the limits of the Diego Padilla, or El Tago grant. 

Farr api>ealed. In his appeal he alleged 

that the said tract of land is not now within the limits of the said Diego Padilla, or 
£1 Tago grant, because the said grant claim was rejected by the United States court 
of private land claims, on the 8th of September, 1894, prior to the filing of said 
homestead application. 

It appears from a certified statement of the deputy clerk of the court 
of private land claims that on the 8th day of September, 1894, said 
private land claim was rejected by that court, and that an appeal from 
the judgment of said court was taken to the supreme court of the 
United States, where the case was pending when your office decision 
was rendered affirming the judgment of the local officers. 

Fair appeals. 

10671— VOL 24 1 1 



2 DECISIONS RELATING TO THE PUBLIC LANDS. 

The appellant alleges that the land applied for is not now within the 
limits of the Diego Padilla or El Tago grant, for the reason that said 
grant was rejected by the court of private land claims on September 
S, 1894. 

Your ofQce found that : 

The land withiu the claimed limits of the El Tago graut is in a state of statutory 
TeservatloD, to satisfy the claim, under the provisions of section 8 of the act of July 
22, 1854. (10 Stat., 308.) 

Said section 8 provided that: 

Until the final action of Congress on such claims, all lands covered thereby shall 
be reserved from sale or other disposal by the government, and shall not be subject 
to the donations granted by the provisions of this act. 

Thtis was clearly a statutory reservation, covering all lands situated 
in the territory acquired from Mexico, claimed under Mexican or 
Spanish grants; it was to remain in force ** until the final action of 
Congress on such claims.'^ 

By act of March 3, 1891 (26 Stat., 854), Congress established the 
court of private land claims, with jurisdiction to hear and determine 
all cases or claims presented by any person or persons or corporation 
or their legal representatives, 

claiming lands within the limits of the Territory derived by the United States from 
the Republic of Mexico and now embraced withiu the Territories of New Mexico, 
Arizona, or Utah, or within the States of Nevada, Colorado, or Wyoming, by virtue 
of any such Spanish or Mexican grant, concession, warrant, or survey, as the United 
States are bound to recognize and confirm, by virtue of treaties of cession of said 
country by Mexico to the United States, which at the date of the passage of this 
act have not been confirmed by act of Congress, or otherwise finally decided upon 
by lawful authority, and which are not already complete and perfect. 

The purpose of Congress in passing this act evidently was to pro- 
Tide a special tribunal to pass upon, settle, determine and adjudicate 
every claim that existed, or could properly be made, under any and all 
grants made by Spain or Mexico to lands within the territory specified 
in said act, prior to its acquisition by the United States from Mexico. 

By the 7th section of the act it is provided, inter alia^ that: 

The said court shall have full power and authority to hear and determine all 
questions arising in cases before it relative to the title to the land the subject of 
such ease, the extent, location, and boundaries thereof, and other matters connected 
therewith fit and proper to be heard and determined, and by a final decree to settle 
and determine the question of the validity of the title and the boundaries of the 
grant or claim presented for adjudication, according to the law of nations, the stipu- 
lations of the treaty concluded between the United States and the Republic of 
Mexico at the city of Guadalupe-Hidalgo, on the second day of February, in the 
year of our Lord, eighteen hundred and forty -eight, or the treaty concluded between 
the same powers at the city of Mexico, on the thirtieth day of December, in the 
year of our Lord, eighteen hundred and fifty-three, and the laws and ordinances of 
the government from which it is alleged to have been derived, and all other ques- 
tions properly arising between the claimants or other parties in the case and the 
United States. 



DECISIONS RELATING TO THE PUBLIC LANDS. 3 

Section 9 of the act provides that the party against whom the court 
shall decide in any case: 

Shall have the right of appeal to the supreme court of the United States, such 
appeal to be taken within six months from date of such decision, and in nil respects 
to be taken in the same manner and upon the same conditions, except in respect of 
the amount in controversy as is now provided by law for the taking of appeals from 
decisions of the circuit courts of the United States. On any such appeal the supreme 
court shall re-try the cause, as well the issues of fact as of laW; and may cause tes- 
timony^ to be taJien in addition to that given in the court below, and may amend the 
record of the proceedings below as truth and justice may require; and on such 
re-trial and hearing, every question shall be open, and the decision of the supreme 
court thereon shall be final and conclusive. Should uo appeal be taken as aforesaid, 
the decree of the court below shull be final and conclusive. 

The act contains nineteen sections, in which full and specific pro- 
visions are made for determining all the rights of all claimants under 
Mexican or Spanish grants, in the States and Territories named. The 
15th section expressly repeals section 8 of the act of July 22, 1854, 
referred to in your office decision as reserving the land involved. The 
repeal of said section is without any qualification and goes to the 
entire section, "and all acts amendatory or in extension thereof, or 
supplementary thereto.'' It follows that your office erred in holding 
that the land in question is in a state of statutory reservation under 
the act of 1854, supra. 

However, it does not necessarily follow that your office decision must 
be reversed; for, if the conclusion reached was the correct one under 
the law and record presented, then it should be affirmed. 

The question to be determined is, whether the land in question was 
properly subject to entry under the homestead law at the time Farr 
made his application. 

As long as the 8th section of the act of 1854, supra^ was in force, 
there can be no question but what this land was reserved. It should 
be borne in mind that in enacting said section Congress undertook to 
provide a manner whereby it was intended to ascertain the origin, 
nature, character and extent of all claims to lands under the laws, 
usages, and customs of Spain and Mexico. The surveyor-general for 
IN^ew Mexico, under instructions of the Secretary of the Interior, was 
required to make a full report of all such claims as originated before 
the cession of the territory to the United States by the treaty of 
Guadalupe-Hidalgo. 

liy the terms of said treaty the United States bound itself to protect 
all claimants having such claims in their rights, and it may be that the 
express reservation made by section 8 of said act was placed therein 
more in the nature of a precaution than as a necessity. Whatever may 
have been the purpose of Congress in making said reservation, it is 
clear that all lands embraced within the claimed limits of grants made 
by Mexico or Spain prior to said treaty were in a state of reservation 
under ^he terms of the treaty itself, independent of any reservation 
that might be made after such treaty was duly ratified. It follows that 



4 DECISIONS RELATING TO THE FUDLIO LAND& 

the repeal of the section of the statute containisg the reservation 
would not have the effect of releasing lands reserved under treaty obli* 
gations from such reservation. 

As has been shown, the act of March 3. 1891, provided for a special 
tribunal to determine the rights of claimants to lands included within 
grants claimed to have been obtained firom Mexico or Spain prior to the 
treaty of Ouadalupe-Hidalgo. Congress invested said tribunal with 
full authority to determine every question, subject to the right of a])i)eal 
to the supreme court of the United States, respecting the validity, 
extent and scope of all unadjusted claims to lands included in Spanish 
or Mexican grants. The title, validity and boundaries of such grants 
or claims were to be adjudicated ^' according to the law of nations, the 
stipulations of the treaty concluded between the United States and the 
Republic of Mexico at the city of Guadalupe- Hidalgo," on February 2, 
1848, and the treaty between the same powers on December 30, 1853. 

It is, therefore, held that under the above named treaties all lands 
embraced within the boundaries of Mexican or Spanish grants or claims 
at the date said treaties were duly ratified were by said treaties placed 
in a state of reservation; that said reservation has been coutiuued in 
force by the act of March 3, 1891, supra; that such reservation will con- 
tinue in force until after the judgment of said court becomes fiual and in 
all respects complete. 

Farr's application to enter the land in question, having been made at 
a time when said land was in a state of reservation and not subject to 
entry, was rightfully rejected. 

The conclusion of your office in the decision appealed from was cor- 
rect. The judgment appealed from is accordingly affirmed. 



RATLROAn GRANT— LAND EXCKPTED-BONATION CliAIM. 

Oregon and California R. B. Co. v. Crocker. 

A donation claim of a married man embracing more than three hundred and twenty 
acres is not void, bnt voidable only, and land inolnded therein, at the time whea 
a railroad grant becomes effective^ is excepted from the operation of the grant. 

Secretary Francis to the Gammissianer of the General Land Office, Jan- 
(I. H. L.) uary 8, 1897. (W. A. E.) 

The SE. J of the SW. i, and the fractioDal SE. J of the SE. J (or lot 1 ) 
of Sec. 7, T. 1 S., R. 2 W., Oregon City, Oregon, land district, are within 
the primary limits of the grant made by act of July 25, 1866 (14 Stat., 
239), to aid in the constrnction of the Oregon and California Railroad, 
and lie opposite the portion of said road that was definitely located 
January 29, 1870. 

March 30, 1880, said tracts were listed by the railroad company, per 
list 13. 



DECISIONS RELATING TO THE PUBLIC LANDS. 5 

March 23, 1885, William L. Crocker made homestead entry for the 
8E. :J of the SW. J of said section 7, and this entry was commuted to 
cash on December 4, 1886. 

By your offire letter of March 19, 1895, the railroad company's list 
"iras held for ciincelhition in so far as it covered the tracts above 
described, for the reason that said tracts were inclu<led, at the date of 
the definite location of the road, in the uncanceled donation claim 
of one Jacob Miuter. 

From this action the company has appealed. 

Tlie records show that on November 30, 1855, Jacob Minter filed 
notification under section 5 of the Oregon donation net of Sejitember 
27, 1850 (9 Stat, 486), as amended by the act of February 14, 1853 (10 
Stat., 158), for these tracts in section 7, together with adjoining lands 
in section 1^, the whole being estimated at ''about 320 acres/' the 
amount of laud that a married man and his wife could take under sec- 
tion 5 of said act as amended; that as a matter of fact said donation 
claim covered more than the legal three hundred and twenty acres, but 
that it remained intact up to December 17, 1876, when, at the request 
of the heir of said Minter, the tracts in section 7 were excluded, and 
patent issued for the remainder. 

The railroad company contends: 

1. That a donation notification does not except the land covered 
thereby from the operation of the grant to said company. 

2. That section 5 of the donation act confined a married claimant to 
three hundred and twenty acres, one hundred and sixty for himself and 
one hundred and sixty for his wife, and as Minter's claim covered more 
than three hundred and twenty acres, it was invalid as to the excess and 
the company's grant took effect upon the excess. 

It has recently been held by tbe Department that land embraced 
within a notification of a donation claim, at the time when a railroad 
grant becomes effective, is excepted from the operation of said grant, 
thoQgh claims of such character are not si)ecifically named in the 
excepting clause of the grant. Oregon and California B. E. Co. r. 
Kuebel, 22 L. D., 308^ Oregon and California R. R. Co. v. Bagley, 23 
L. D,, 392. 

This ruling disposes of the first contention of the railroad company, 
and renders further comment thereon unnecessary. 

In the case of John J. Elliott, 1 L. D., 303, it was held that the filing of 
the original notification was an ipso facto segregation of tbe tract there 
described from the lands contiguous thereto. A donation notification 
had the effect, therefore, of an entry in the matter of segregating the 
land covered thereby. 

Tbe Department has held that a homestead entry exceeding one hun- 
dred and sixty acres is voidable only, and while of record is an appro- 
priation of the land. Charles Hoffman, 4 L. D.; 92; Legan v, Thomas 
et al.^ id.y 441. 



6 DECISIONS RELATING TO THE PUBLIC LANDS. 

It follows tbat Minter's donation notification, during the time it 
embraced more than the legal three hundred and twenty acres, was- 
voidable only, and was an appropriation of the entire amount of land * 
covered thereby. 

On January 29, 1870,. when the grant took effect, these tracts in sec* 
tion 7 were covered by Minter^s notification, and consequently were 
excepted from the operation of the grant. 

Your office decision is affirmed. 



OSAGE CET>ED LANDS— FORFEITURE OF ENTRY. 

Mars Taylor. 

The Department has authority to cancel entries of Osage ceded lands where defnnlt 

exists as to the payment of the purchase price. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 8, 1897. (W. C. P.)- 

I am in receipt of your letter of October 10, 1896, asking for instTuc* 
tions as to the proper procedure in the matter of the purchase by Mars 
Taylor of the NW. i of the S W. J of Sec. 33, T. 31 S., R. 18 E., Kansas, 
being a part of the body known as the ^^ Osage ceded lands.'' 

By the treaty of September 29, 1865 (U Stat, 687), the Osage In<liana 
granted and sold to the United States certain lauds in Kansas for 
which the United States agreed to pay the sum of 8300,000 to be placed. 
to the credit of said Indians in the Treasury and interest to be paid, 
thereon at five per centum per annum. Said treaty further proxided: 

Said lands shall he surveye<l and sold, nnder the direction of the Secretary cif the^ 
Interior, on the most advantageons terms for cash, as public lands are surveyed and 
sold under existing laws including any act granting lands to the State of Kansas in 
aid of the construction of a railroad through said lands but no pre-emption claim or 
homestead settlement shall be recognized; and after reimbursing the United Stated, 
the cost of said survey and sale, and the said sum of three hundred thousand dollars 
placed to the credit of said Indians, the remaining proceeds of sales shall be placeck 
in the Treasury of the United States to the credit of the ^'civilization fund'' to be 
used, under the direction of the Secretary of the Interior, for the education and 
civilization of Indian tribes residing within the limits of the United States. 

By the second article of said treaty certain other lands were ceded to. 
the United States to be held in trust for said Osage Indians and sur- 
veyed and sold for their benefit. 

By joint resolution of April 10, 1869 (16 Stat., 55), it was provided 
that any bona fide settler residing upon any portion of the lands by 
virtue of the first and second articles of said treaty being a citizen of 
the United States or having declared his intention to become a citizen 
should be entitled to purchase the same in quantity not exceeding onc^ 
hundred and sixty acres, at on^ dollar and twenty-five cents per acre, 
within two years from the date of said resolution under such rules and 
regulations as may be prescribed by the Secretary of the Interior. 



DECISIONS RELATING TO THE PUBLIC LANDS. 7' 

The next legislation affecting these lands is fonnd in the act of 
August 11, 1876 (19 Stat* 27). It was there provided by section one 

that any bona fide settler resifling at the time of completing his or her entry ^ as here^ 
inafter provided, upon any portion of the land sold to the United States, hy virtue 
of the first article '' (of said treaty of 1865; who is a citizen of the United States, &c.) 
''shall be and hereby is, entitled to purchase the same in quantity not to exceed 
one hundred and sixty acres at the price of ouo doUar and twenty-five cents ]>er acre 
'vrlthin one year from the passage of this act, under such rr.les and regulations ai 
may be prescribed by the Secretary of the Interior and on the terms hereinafter 
provided. 

The second section of said act makes provision for the protection of 
persons who had purchased any portion of said lands from railroad 
companies claiming the same. 

Section three prescribes the terms of purchase, and reads as follows: 

That the parties desiring to make entries under the provisions of this act who will, 
within twelve months after the passage of the same make ptiymentat the rate of 
one dollar and twenty-five cents per acre, for the land claimed by said purchaser, 
nnder snch rules and regulations^ an the Commissioner of the General Land Office 
may prescribe, as follows, that is to say : said purchaser shall pay for the lund he or 
she is entitled to purchase one-fourth the price of the land at the time the entry is 
made, and the remainder in three annual payments, drawing interest at the rate of 
five per centum per annum, which payment shall be secured by notes of said pur- 
chaser, payable to the United States; and the Secretary of the Interior shall with-' 
hold title until the last payment is made; and the Secretary of the Interior shall 
cause patents to issue to all parties who shall complete their purchases under the, 
provisions of this act, and if any claimant fails to complete his or her entry at the 
proper land office within twelve months from the passage of this act, he or she shaU 
forfeit all right to the land by him or her so claimed, except in cases where the land 
is in contejjit: Provided further y That nothing in this act shall be construed to pre- 
vent any purchaser of said land from making payment at any time of the whole or 
any portion of the purchase money. 

Section four provides for entries on said lands for town sites. Section- 
five provides for the re-establishment of entries theretofore canceled by 
the Secretary of the Interior. Section six reads as follows: 

That all declaratory statements made by persons desiring to purchase any portion 
of said land under the provisions of this act, shall be filed with the register of the 
proper land office within sixty days after the passage of the same: Providedy howeveTf 
That those who may settle on said land after the passage of this act shall file their 
declaratory statement within twenty days after the settlement, and complete their 
pnrehaae under the provisions of this act within one year thereafter. 

Section seven reads as follows : 

That nothing in this act shall be so construed as to prevent said land from l:eing 
taxed under the laws of the State of Kansas as other lands are or may be taxed in 
said State from and after the time the first payment is made on said land, according 
to the provisions of tiiis act. - . . 

Section eight, the last of said act, provides for the purchase by cer- 
tain railroad companies of certain tracts. 

On October 26, 1876, instructions v[ere given to the local officers 
calling attention to the various provisions of said law and telling them 
of their duties thereunder. 



8 DECISIONS RELATING TO THE PUBLIC LANDS. 

The right given to settlers to parchase these lands is in the nature 
of a pre-emption right, and by parity of reasoning the authority of this 
Department to declare and enforce a forfeiture for failure of the pur- 
chaser under this law to comply with the provisions thereof would be 
the same as in pre emption casesi. While the law under consideration 
contains no express declaration of forfeiture for default in making the 
deferred payments, it does contain the provision that — "the Secretary 
of the Interior shall withhold title until the last payment is made." 
The contract was one of sale, by which the United States agreed to 
convey the title upon certain conditions, one of which was the payment 
by the purchaser of the specified price within three years from the date 
of his entry. The failure of a purchaser to comply with the obligations 
he had assumed would relieve the United States of all obligations 
under such contract and would render the claim of the defaulting pur- 
chaser liable to a declaration of forfeiture. Furthermore, the authority 
to declare a forfeiture of sach claims, and to enforce it by cancellatiou 
of the entries, is necessary to a proper administration of the law direct- 
ing the sale of these lands. 

The provisions of this law are very like those of the law providing- 
for the sale of the Otoe and Missouria lands, of which my iiredecessor. 
Secretary Smith, after discussing the question, said (23 L. D., 143) : 

I am fully persuaded, therefore, of the power of the Secretary of the Interior to 
cancel the entries of these purchasers of Otoe and Missouria lands who are in default 
in the deferred payments. 

So in the case of Osage ceded lands this Department has authority 
to cancel entries where default exists as to the payment of the purchase 
price. 

It is, and should be, the policy to allow the purchaser of public lands 
opportunity to cure his default before final action is taken uiion his 
claim, and in these cases notice should be given the purchaser, by serv- 
ice upon him personally if he can be reached in that way, and, if not, 
then by publication in such manner as will most likely reach him, that 
his entry will be canceled unless he shall, within some reasonable time, 
to be specified, complete his purchase. 

Your attention is also called to the fact that said law specifically pro- 
vides that nothing therein ^^ shall be so construed as to prevent said 
land from being taxed under the laws of the State of Kansas." In 
view of this provision, you should ascertain whether the land has been 
sold for taxes, and at the same time, whether any transfer of any kind 
has been made. The present claimant of the land should be served 
with notice of the contemplated cancellation of the entry. 



DECISIONS RELATING TO THE PUBLIC LANDS. 9 

repayment-common granted limits. 
Thomas Hawley. 

An even nambered section lying within the common granted limits of two railroad 
grants remainH at double minimum though one of such grants may have been for- 
feitedy and an a)iplication for repayment on the ground of double minimum 
excess must be accordingly denied. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary S, 1807. (E. M. R.) 

This 18 au Application by Thomas Hawley for the repayment of the 
doable minimum excess paid iu the Ashland, Wisconsin, land district, 
CD cash entry No. 5037, for the S. ^ of the SW. J of Sec. 14, T. 49 N., 
B. 7 W., and is before the Department on ajipeal from your office 
decision of October 31, 1895, denying suid application. 

This land is Trithin the common ten mile limits of the Omaha railroad 
and the Wisconsin Central railroad. The appeal is based upon the 
authority of the case of James McVicar (21 L. D., 128). 

On June 3, 185G (11 Stat., 20), Congress j>assed an act to aid in the 
eonstmctiou of the Chicago, St. Paul, Minneapolis and Omaha raiho-.id. 
On May 5, 1864 (13 Stat, 56), Congress passed an act by which the 
grant to the said Omaha railroad comx)any was enlarged from six to ten 
sections x>er mile. By the same act a grant was made to aid in the con- 
struction of the railroad now known as the Wisconsin Central railroad. 

The tract of land upon which re-payment is now asked, as has been 
stated, is within the common ten mile limits of these two roads. 

This Department has held that the grant made by the act of 1864 
was of a moiety to each road of the lands so lying within the common 
limits of both, but held that in view of the fact of the withdrawal for 
indemnity puri^oses in behalf of the Omaha railroad iu 1856, the grant 
to the Central company was defeated as to laud so situated. ( Wiscon 
sin Central H. B. Co., 10 L. D., 63; and Chicago, St. Paul, Minneapolis 
and Omaha B. B. Co., Id., 147.) 

In the decision of the Department in the case of James McYicar 
(supra) it was said — 

In the adjustment of the Omaha grant said company was required to make selection 
of lands -within the common hmit equal to its moiety, to which it was given full 
title, the remaining lands being held to apply to the moiety for the Central com- 
pany's grant, which being defeated by the reservation under the act of 1856, as 
before stated, were opened to entry. The land in question is a portion of that 
xestored, and in completing entry therefor, McVicar was required to pay at the rate 
•f $2.50 per acre or the double minimum price. 

Section 4 of the act of Congress of May 5, 1864 (13 Stat., 66-page 
•7 thereof), provides: 

And he it further enacted, That the sections and parts of sections of lands which 
shaU remain to the United States within ten miles on each side of said roads shall 
not be sold fi>r less than double the minimim price of the public lands when sold ; 



10 DECISIONS RELATING TO THE PUBLIC LANDS. 

nor shall any of the said reserved lands become sabject to private entry nntil the 
same have been first offered at pnblio sale at the increased price. 

lu the case of the Wisconsin Central 11. R. Co. v. Forsythe (109 U. S., 
46), it was held that the withdrawal made for indemnity purposes under 
the act of 1856 did not serve to defeat the attachment of rights 
under the grant made by the act of 1864, and consequently that the Wis- 
consin Central railroad company was entitled to its proportionate share 
of the land so lying within the ten mile limits of each road. This was 
a reversal of the holdings of this Department, iuasuijuch as it was held 
by the supreme court that the withdrawal did not operate to defeat 
the grant to the Wisconsin Central railroad company. 

Under the act of Congress of September 29, 1890 (26 Stat., 496), 
being *^An act to forfeit certain lands heretofore granted for the pur- 
pose of aiding in the construction of railroads and for other purposes," 
whieh forfeited unearned lands granted to railroads in various states 
and provided for the restoration of such lands to the public domain, it 
was provided that lands so forfeited and restored to the public domain 
should be entered at the rate of $1.25 per acre. 

It will be noticed that the land in controversy is a part of an even 
numbered section, to-wit, section 14. By referrii g to the original 
act making this grant in behalf of the Wisconsin Central Eailroad 
Company, and in which at the same time is enlarged the grant in behalf 
of the Omaha Company, it will be seen that the lauds increased in 
price were those which were not granted to these railroad companies. 
The lands granted to the railroad companies were the odd numbered 
sections within said limits. They, therefore, were not increased in 
price. And under the act of September 29, liS90, the lands granted to 
the railroad were forfeited and were directed to be sold at $1J25 per 
acre. 

It thus follows that there is no statutory authority for ordering 
re-payment in this case, and this land being within the ten mile limits 
of the Omaha railroad, despite the fact that the grant to aid in the* 
construction of the Wisconsin Central railroad has failed and deter-* 
mined, the even sections within said ten mile limits of the Omaha rail- 
road remain at double minimum prices. 

While it is unfortunate that Congress should have directed the sale 
of the odd numbered sectiops at siugle minimum rates in this particu- 
lar instance, and left the even numbered sections at double mininmm 
rates, still this is no hardship to the claimants under the public laud 
laws on the even numbered sections, inasmuch as the reason of increased 
valuation by proximity to a railroad existed here as in all other instances, 
of increased prices. The law simply relieves claimants upon odd num- 
bered sections similarly situated in reference to a railroad from paying 
the double minimum price. 

The decision of your office is affirmed and the application for re-i)ay- 
ment is denied. 



DECISIONS RELATING TO THE PUBLIC LANDS. It 

COAli LAND ENTRY-PRICE OF LAND, 

ALLEN L. BUEGESS. 

The price of coal land is dependent upon its distance from a completed railroad at 
the date of en try ^ and not at the date of the application. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 8y 1897. (S. V. P.) 

Allen L. Burgess made coal land entry September 14, 1805, of tbe 
SE. i of the SE. \ of Sec. 14, T. 55 K., R. 85 W.^ Buffalo land district, 
Wyoming, and upon examination of tbe final proof your oflfice held it 
unsatisfactory with respect to the proof furnished as to the distance of 
the land from a completed railroad at tbe time said entiy was made, 
and required further proof on that point, in order that the proper price 
of the land might be determined. From this action Burgess has 
appealed. 

In tbe final affidavit made by Burgess, be states: 

I made application to pnrcbmse said land on or about November 14, 1892, at which 
time said land was not within fifteom miles from tho line of any completed railroad; 
and that the delay in making payment for Raid land has beeii caased through a con- 
test pending on said land between Hermann Tinun and myself, which contest has 
been recently decided. 

The price of coal land is fixed by section 2347 of tbe Bevteed Statutes, 
which provides that: 

Erery person above the age of twenty-one years .... shall, upon application to 
the register'of the proper land office, have the right to enter by legal subdivisions, 
any quantity of vacant coal lands of the United States not otherwise appropriated 
or reserved by competent authority, not exceeding one hundred and sixty acres to 
anch individual person .... upon payment to the receiver of not. less than len 
dollars per acre for such lands, where the same shall be situated more than fifteen 
miles from any completed railroad, and not less than twenty dollars per a<Te for such 
lands as shall be within fifteen miles of such road. 

Under tbe construction of tbis statute, adopted and followed by the 
Department, it is tbe distance of tbe land from a completed railroa<l at 
the d«ite of entry that determines its price. See paragraph 13, Regu- 
lations of July 31 , 1882 (1 L. D., 689). 

In tbe case of Edward B. Largent et al. (13 L. D., 397), a protest 
against tbe allowance of tbe application to enter was filed, as in tbe 
ease at bar, and tbe Department in disposing of tbe question said : 

The filing of the protest against the entry of Strong was a risk that must be 
as8Rme<l by all who apply to enter the public land. The fact that in this particular 
case it had the effect to postpone the entry until after a railroad was completed within 
fifteen miles of the tract, which under the law doubled the price of the land, is only 
incidental, and the government can not be properly beld chargeable for the delay, 
occasioned by Mr. BagnelPs protest. - * 

and it was therefore held that tbe ])rice of tbe land was dependent 
upon its distance from a completed railroad at date of entry, and not 
at tbe date of the application. 
The decision of your office is affirmed. 



12 DECISIONS RELATING TO THE PUBLIC LANDS. 

SCSOOL LAN1>S-8ETTLEMENT BKFORE SURVEY. 

State of Washington r. Kuhn. 

The act of February 28, 1891, amending sections 2375 and 2276, R. 8., protectn settle- 
ment on school land prior to survey, and said ntatiite in that respect supersedes 
the provisions of sections 10, and 11, of the act of February 22, 1889. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary S, 1S97. (C. J. G.) 

This case is in relation to the E. J of the NW. ^ and the ^N". J of tlie 
NE. J, Sec. 36, T. "21 N., R. 8 E., Seattle land district, Washington. 

On April 18, 1893, Edward A. Kulin made liomestead entry for this 
tract, alleging settlement thereon September 29, 1890. 

On Angnst 13, 1895, the State of Washington, by its Commissioner 
of Public Lands, entered protest against the allowance of said entry, 
and requested that a hearing be ordered to determine the rights of the 
respective parties. 

The grounds urged in said protest were, that title to this land, being 
located in section thirty- six, had passed and become vested iu the State 
of Washington by virtue of sections ten and eleven of the act of Feb- 
ruary 22, 1889 (25 Stat., C7C), admitting the said State into the Union; 
that the title of the State of Washington in and to said land is not 
affected or invalidated by reason of the provision of the act of Febru- 
ary 28, 1891 (26 Stat., 79C), amending sections 2275 and 2276 of the 
Revised Statutes of tlie United States. 

The State of Washington was admitted into the ITuion on Novem- 
ber 11, 1889. 

On October 7, 1895, Ku^m submitted his final proof; and on October 
10, 1895, the local office dismissed the protest filed by the State of 
Washington, holding that the elaim of said State was iu contravention 
of the act of February 28, 1891 (supra). Knhn's final proof being 
satisfactory fijial.certificate was duly issued thereon. 

The State of Washington filed an appeal from the above decision, 
and under date of November 29, 1895, your office affirmed the action 
of the local office. A further append on behalf of the State brings the 
case before this Department, the errors assigned being iu line with 
the specifications contained iu the protest against Kuhn's entry. 

That portion of sections 2275 and 2276, incorporating the act of Feb- 
ruary 26, 1859 (11 Stat., 385), which has reference to the point under 
consideration, is as follows: 

V^There settlements, with a view to pre-emption, have heen made before survey of 
the lands in the field, which are found to have heen made on sections sixteen or 
thirty-six, those sections shall be subject to the pre-emption claim of such settler; 
and if they, or either of them, have been or shall be reserved or pledged for the use 
of schools or colleges in the State or Territory in whicli the lands lie, other lands of 
like quantity are appropriated in lieu of such as may be patented by iire-emptors, etc 



DECISIONS KELATING TO THE PUBLIC LANDS. 13 

The act of February 22, 1889 {8upra)j has a proviRion in section 11 
thereof as follows: 

All lands herein granted for educational purposes .... Khali not be Hubject to 
pre-emption, homesteatl entry, or any other entry under the land laws of the United 
(states, whether surveyed or unHurveyed, but shall be reserved (or school purjioses 
only. 

The act of February 28, 1801 (8upra)j amended sections 2275 and 
227(> of the Kevised Statutes to read ns follows: 

Where settlements with a view to pre-emption or homestead have been, or shall 
hereafter be made, before the survey of lands in the field, which nre found to have 
been made ou sections sixteen or thirty-sis, those sections Hhall be subject to the 
claims of such settlers; and if such sections, or either of them, have been or shall bo 
granted, reserved or pledged for the use of schools or colleges in the State or Terri- ' 
tory in which they lie, other lands of equal acreage are hereby appropriated and 
granted, and may be selected by said State or Territory, in lion of such as may be 
thns taken by pre-emption or homestead settlers .... 

That the lands appropriated by the preceding section shall be selected from any 
unappropriated^, surveyed public lands .... within the State or Territory where 
such losses or deficiencies of school sections occur, etc. 

It has been decided by the Department that the provisions of sections 
10 and 11 of the act of February 22, 1889, and those of sections 2275 
and 2276 of the Kevised Statutes, being in apparent conflict, the same 
are superseded by the act of February 28, 1891, and that the grants to 
these States are to be found in and governed by this later act. The 
Department, in the instructions to your office dated April 22, 1891 (12 
L. D., 400), held, 

that the provisious of the prior act of February 22, 1889, in so far as they are in 
conflict with those of said sections 2275 and 2276 of the Revised Statutes ns amended 
by the later act of February 28, 1891, are superseded by the provisions of said sec- 
tions as amended, and that the grants of school lands to those States mentioned in 
•aid act of February 22, 1889, are to be administered and adjusted under the pro- 
▼iaions of this later general law. 

It is thus apparent from the foregoing that until survey no rights of 
the State can attach to sections 16 and 36 under the grant; and that 
settlements made on said sections before survey shall be subject to the 
claims of such settlers. 

The records of your office show that the plat of survey for the laud 
in question was flled in the Seattle land office, and the said land opened 
to entry, on February 7, 1893. 

As previously set out herein Kuhn alleges settlement on September 
29, 1890. 

Your office decision is hereby affirmed. 



X4 . DECISIONS RELATING TO THE PUBLIC LANDS. 

PRACTICE-NOTICE— SCHOOL L ANT>9~SELECT:I0N . 

Rice r. State of California. 

Service of notice of contest by registered letter is not personal service within the 
meaning of Rule 9 of Practice. 

The title of the State to school lands vests at the date of the completion of the sur- 
vey, and if the land is not then known to be mineral in character, the subsequent 
discovery of mineral thereon will not divest the title that has already passed. 

The State by a school indemnity selection in lieu of land alleged to be mineral in 
character waives its clilim to the basis, which may be thereupon disposed of ns 
part of the public domain. 

Secretary Francis to the CommiHsioner of the General Land Office^ Jan- 
(I. H, L.) uary 8, 1897. (P. J. C.) 

The land involved in this appexil is the S. J of the XW. \ of Sec. 36, 
T. 11 N., E. 8 W., M. D. M., San Francisco, California, land district, tbe 
plat of which was approved and tiled in the local office August 9, 1875. 

On March 20, 1895, John C. Rice filed an affidavit of contest, alleging 
that he has known the land since 1890, that it is mineral in chai*acter, 

and ever since deponent first knew the land it has been known to be mineral, bein^ 
more valuable for mineral than for agricultural purposes. 

A hearing was ordere<l and a copy of the notice sent by registered 
mail to the surveyor general of California. There was no appearance 
for the State at the hearing, or subsequently. The contestant sub- 
mitted his testimony, and the local officers held the land to be mineral 
in character, known to be such at the date of the survey. No appeal 
was taken. Your office, by letter of November 5, 1895, reversed the 
action of the register and receiver on two grounds; first: that service 
of notice of a hearing by mail was without "authoritj^ of law or warrant 
in the rules of practice;^ and second: that the land being in section 36 
was granted to the State as school land, ^Mmless said land was known 
to be mineral in character at the date when said land was surveyed.'^ 

The appeal of Kice brings the case before the Department, and the 
rulings stated above are alleged to be error. 

It is stated by counsel in his brief that your office decision is erro- 
neous on the first proposition because 

the record contains the surveyor general's written acknowledgment of the receipt 
of notice, which is Hufficieut to perfect service under the doctrine of Crowston r. 
Seal, 5 L. D., 213; Canal Co. r. Louisiana, 5 L. D., 479. 

The only "written acknowledgment of the receipt of notice" to be 
found in the record is the return receipt for a regist^ered letter. 

The case of Crowston v. Seal is overruled in Kiting r. Terhune (18 
L. D., oSG>)^ where it is distinctly held that service of notice of contest 
by registered letter is not personal service within the meaning of Rule 
9 of Practice. The other case cited by counsel does not treat of service 
of notice of contest, but of service of notice of a^ decision of your office 
upon one of the parties to a contest, and is therefore not an author- 
ity upon the proposition stated by counsel. 



DECISIONS RELATING TO THE PUBLIC LANDS. 15 

On the second proposition it has been repeatedly held that the State's 
title to school lands nnder the act of March 3, 1853 (10 Stat., 244), vests 
at the date of the completion of the survey, 

and if the land, although in reality mineral, was not then knowtt to be mineral, the 
subsequent discovery of its mineral character vrould not divest the title which had 
already passed. (Abraham L. Miner, 9 L. D., 408; Pereira r. Jacks, 15 L. D., 273.) 

There is nothing in the affidavit of contest or the evidence submitted 
to show anything to defeat the oi>eration of the grant. All that is 
claimed is that cinnabar exists on the saiface of tbe ground and its 
presence was sufficient to characterize the land as mineral. 

While there was no error in your office judgment as the case was 
then presented, yet there have been some subsequent developments that 
render it necessary to fuither consider the matter. 

My attention is called to the fact that tbe State has, subsequent to 
the initiation of this proceeding by Rice, made indemnity selections in 
lieu of the land in controversy, two of which — Stockton lists Xos. 220 
and 221 — have been approved by your office to the extent of sixty acres, 
and two others — Stockton list No. 222, and San Francisco list No. 5273, 
10 acres each — are now pending. It is stated by counsel that all these 
selections have been approved, but informal inquiry in your office shows 
the fact to be as above stated. The reason assigned by the State for 
making these indemnity selections is that the land in controversy is 
mineral in character. 

By act of Congress of February 28, 1891 (26 Stat., 796), Sec. 2275 
B. S., was amended, and among other provisions therein is found this — 

And other lands of equal acreage are also hereby, appropriated and granted, and 
may be selected by said State or Territory where sections sixteen and thirty-six are 
mineral land, or are included within any Indian, military, or other reservation, or 
are otherwise disposed of by the United States: Provided ^ Where any State is enti- 
tled to said sections sixteen and thirty-six, or where said sections are reserved to 
any Territory, notwithstanding the same may be mineral land or embraced within 
a military, Indian, or other reservation, the selection of such lands in lieu thereof 
by said State or Territory shall be a waiver of its right to said sections. 

Under the terms of this statute it is clear that the State may make 
indemnity selections whenever any. of its granted, school lands are 
found to be mineral in character. In reference' to the land in contro- 
Tersy the State has, presumably, satisfied itself that it does not fall 
within the terms of its grant and has selected other lands in lieu thereof. 
The Department, in commenting on the proviso above quoted, has said : 

Conceding that the school grant attached to the specific sections after they were 
designated by the survey, the State having selected equivalent land in lien thereof, 
the government may hold the State to its waiver of the school sections and dispose 
of it as part of the public domain. (Gregg et at, v. Colorado, 15 L. D., 151.) 

It seems to me that this rule may be applied in the case at bar, and 
that the State by reason of its selection is estopped from making any 
farther claim to the land in controversy. 

Notwithstanding the decision of your office was correct on the record 



16 DECISIONS RELATING TO THE PUBLIC LANDS. 

as it then stood, yet by reason of the action of the State since the ren- 
dition of yonr office judgment, it is clear that the land in controversy is 
now a part of the public domain and may be disposed of as sach, and 
that part of your office judgment that held that the land inured to the 
State under its grant must be vacated. 
It is so ordered. 



8ECOXD HOMJSST£AI> ENTRY— CORROBORATORY AFFIDAVIT. 

BOHUN V. BBEtiX. 

The right to make a second homestead entry may be recognized where the first 
throagli mistake was not made for the land intended, and was accordingly 
relinquished. 

An official certificate of the register as to the trnthfnlness of the applicant may be 
accepted iu lieil of the corroboratory affidavit required in the case of an appli* 
cation to make second homestead entry, where the failure to fnrnish sach affi- 
davit is satisfactorily explained. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 8, 1897. (C. J. W.) 

On May 25, 1891, Nicholas Brest made homestead entry No. 255 for 
the E. i SE. J Sec. 24, T. 24 N., E. 21 E., and NW. J SW. J and SW. J 
N W. 4 Sec. 22, T. 24 N., R. 22 E., Waterville land district, Washingrton. 
S. L. Bohnn contested the entry, after due notice served by publica- 
tion, December 8, 1894. On January 15, 1895, the case came on ibr 
hearing, and Brest made default. The evidence disclosed the fact that 
Brest had never lived on or improved the land. The local officers 
recommended the cancellation of the entry, and there being no appeal, 
on April 26, 1895, your office canceled said entry. 

On filing his contest Bohun made application to enter the land 
embraced in Brest's entry, and which he alleged Brest had abandonei], 
and he also filed an application for the restoration of his homestead 
rights. It appears from the record that on April 26, 1889, Bohnn made 
homestead entry No. 219 for the NW. J, Sec. 26, T. 15 N., R. 3 W.^ 
Guthrie land district, Oklahoma. The same was canceled by relin- 
quishment on November 21, 1889, when Peter Anderson entered the 
said tract. On January 14, 1895, the local officers forwarded to yoor 
office the application of Bohun to make entry of the land covered by 
his contest and application for restoration of his homestead rights, 
with the recommendation that the same be granted. On April 26, 1895, 
your office rejected said application for the reason, and upon the 
ground, that Bohun's affidavit, in which he set forth the i'acts upon 
which he based his right to second entry, was uncorroborated. From 
this decision Bohun appealed. The principal ground of his appeal is 
that he is a qualified homesteader, and under the law is entitled to a 
homestead of one hundred and sixty acres, and that he has never per- 
fected an entry or exhausted his rights. Bohun, in his affidavit, states 



DECISIONS BELATING TO THE PUBLIC LANDS. II 

that after making homestead entry No. 219 (at Guthrie) he returned ta 
his home in Nebraska, with the intention of going upon the land 
entered within six months, but was informed by parties at Guthrie 
that the surveyor, who was employed to run out the lines, had made a 
mistake, and that the entry had been made on the wrong tract of land 
in another township, and that before he could return, other parties had 
filed and made improvements on the land that he intended to file on^ 
and that at the time he was unable to stand the cost of a contest, and 
that the land embraced in the entry was not desirable and not fit for 
farming. That he does not remember the names of the parties who 
would corroborate this affidavit, and could not get their affidavits 
without going to Guthrie for that purpose. He further states that 
after finding the error tht^t had been committed, he relinquished the 
land back to the government on the 21st day of November, 1889, and 
that he has never had the benefit of the homestead laws, and that he 
did not sell his right to the land and did not receive the amount of his 
filing fees. 

It is evident that it is the purpose of the law that every citizen pos- 
sessing the requisite qualifications should be entitled to a homestead 
of one hundred and sixty acres of v^ublic land subject to entry, and that 
a second entry may be made in instances where, for some cause unfore- 
seen, the first entry has failed without fault or fraud upon the part of 
the entryman. If the facts set out in the affidavit of Bohun are true, 
he has not exhausted his homestead rights, and should bo permitted to 
make a second entry. It was evidently not because of the insufficiency 
of the facts, that your office rejected his application, but because it was 
held that they were not sufficiently proven — the objection being that 
the usual corroborating affidavit was wanting. The party is competent 
to testify in his own behalf, but lest a door for fraud should be opened 
by depending entirely upon the testimony of the applicant in this class 
of cases, it has been the rule of the Department to require some sort of 
corroboration of the truth of the applicant's statements. Your office 
doubtless sought to follow this rule in rendering the decision complained 
of. It is not believed that under the peculiar facts of this case, the 
rule as properly construed would be violated by granting the applicant's 
petition. The chief office of corroborative evidence of whatever nature 
it may be is to give assurance of the good faith and truthfulness of the 
affiant to be corroborated. The reason for the failure in this case to 
furnish additional affidavits setting up the same facts stated in the 
applicant's affidavit is given, and that reason is at least forcible. It is 
followed by evidence of the general truthfulness of the affiant. The 
register of the land office at Waterville, in forwarding the application 
of Bohun for restoration of his homestead right, mentions the fact that 
his showing is not corroborated, and then adds the following — 

The tract of land that he makes application for is now held by Nicholas Brest 
homestead entry No. 255, and Bohnn has filed a contest against said tract which I 
10671— VOL 24 2 



18 DECISIONS RELATING TO THE PUBLIC LANDS. 

presume from wBat I can learn from other parties will be an ex parte contest. The 
.register has known Mr. Bohun for sometime, and believes him to be a truthful man, 
•and we would recommend that his right be restored and that he be allowed to make 
^his entry. 

The facts stated in Bohun's affidavit are presumptively true, aud this 
presumption is strengthened by the official report of the register to 
the ettect that he knows and believes him to be a truthful man. This 
report made by an officer of the government, acting under oath, is 
equivalent to an affidavit, and may be regarded as a substantial com- 
pliance with the rule requiring initiatory affidavits to be corroborated. 
The land he seeks to enter was restored to the public domain through 
the instrumentality of a contest initiated by him and proof produced by 
him. It is believ^ that the showing made is sufficient under the cir- 
cumstances to authorize the restoration of his homestead right. 

Your office decision is accordingly reversed, and Bohun will be 
allowed to make second entry for the land applied for. 



MTNTNG CLAIM-JIJI>1CIAL PROCEEDINGS-SECTION «38«, R. S. 

Cain et al, v. Addenda Mining Co. 

Judicial proceedings are not effective as against an application for mineral patent if 
not baaed upon an adverse claim as provided by statute. 

-Continuous possession of a mining claim, with due compliance of law, for a period 
equal to the time prescribed by the statute of limitations for mining claims, in 
the State wherein such claim is situated, entitles the claimant under the provi- 
sions of section 2332, R. S., to a patent, in the absence of any adverse claim. 

Secretary Frafieis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 8, 1897. (E. B., Jr.) 

The record in this case shows that The Addenda Gold and Silver 
Mining Company, a corporation organized nnder the laws of California, 
made application November 11, 1879, for patent to the Addenda lode 
claim, situated in Bodie, California, land district; that the claim was 
located May 19, 1877; that the period of publication ended January 
17, 1880; that during the period of publication the said application 
was adversed by the owner of the Concordia lode claim, suit duly com- 
menced thereon, and judgment given April 13, 1882, awarding the 
ground in conflict to the adverse claimant; that on December 10, 1894, 
the said company made mineral entry Ko. 240 for what remained after 
excluding the conflict with the Concordia lode and the Insurance lode; 
4)hat on April 27, 1895, James S. Cain, Alexander J. McCone, and John 
W. Kelly filed a protest against said entry, alleging, in effect, — 

1. That the Addenda claim had been abandoned by said company Bubseqnent to 
■ application for patent and before entry ; 

2. That in 1894, and subsequent to the alleged abandonment, the Addenda claim 
had been re-located, and that pro tea tan ts were owners of the ground under the 
ire-location; and 



DECISIONS RELATING TO THE PUBLIC LANDS. X9 

3. That in November, 18d4, they commenced suit against said company to qoiet 
title, which suit was then pending. 

In the course of proceedings fully set out in your office decisions of 
September 3, 1895, and (on review) January 0, 189G, and not necessary 
to be recited here in detail, your office by its former decision lield that 
protestants' said suit, not having been instituted under any provision 
of the mining laws, did not authorize any stay of proceedings under the 
company's application for patent; that it was shown that the company 
had in good faith endeavored to comply with the mining laws; that tbe 
alleged re-location by one P. Curtis, under which protestants claimed, 
having been made by him wbile agent of said company, was in fraud of 
the company's rights, gave protestant no right against the company, 
was insufficient to defeat its entry; and therefore dismissed the protest. 
Upon motion for review by protestants, your office, in its latter decision, 
basing its action largely upon a judgment in favor of protestants in 
their said suit, made and entered in the superior court of Mono county, 
California, August 30, 1895, overruled its former decision and held the 
company's entry for cancellation. The company thereupon appealed, 
assigning error as follows : 

The Commissioner erred in holding that the said Addenda Gold and Silver Mining 
Company had not complied in good faith with the laws governing and holding min- 
ing claims. 

The Commissioner erred in holding that the only remedy in the above entitled mat- 
ter was by an action in equity to hold the re-locators and their grantees trustees for 
the Addenda Gold and Silver Mining Company. 

The Commissioner erred in holding that the Addenda Gold and Silver Mining Com- 
pany abandoned its claim by failing to file a notice of its intention to hold the said 
location in good faith under the act of November 3rd^ 1893. 

The Commissioner erred in holding that there is a final decree in favor of the 
plaintiffs in tbe case of Cain et a/, v. Addenda Gold and Silver Mining Company. 

The Commissioner erred in holding that the application for a patent should be 
canceled instead of suspended during the pendency of the action of Cain et al, v. 
Addenda Grold and Silver Mining Company. 

The Commissioner erred in holding that the patent should be held for cancellation 
on the ground that the Department of the Interior did not have sufficient equity 
powers to waive a technical violation of the law, where the applicant was not to 
blame for such violation. 

The Commissioner erred in holding the application for a patent for cancellation 
under the facts recited in his decision of January Gth, 1896. 

It is in evidence and not denied that prior to 1886 said company had 
expended $100,000 on said claim; that said Curtis was the superintend- 
ent of the company during 1885, in their mining operations thereon ; 
that from 1886 to 1892, inclusive, he was the company's agent to see 
that the annual assessment work was done thereon, the company hav- 
ing no other agent in the neighborhood; that the company sent him 
$100 each year during that period to pay for such work, and that he 
regularly filed each year during that period his affidavit with the dis- 
trict mining recorder, that he had expended that amount in assessment 
work upon the claim in behalf of said company. 



20 DECISIONS RELATING TO THE PUBLIC LANDS. 

On November 23, 1893, Congress passed an act (28 Stat., 6), excusiug 
assessment work on a mining claim for that year upon the filing for 
record in the office where the location certificate was on file a notice 
that the claimant in good faith intended to hold and work the claim. 
Snch notice was sent by the company to Cnrtis in November, 1893, to 
be duly filed. He admits the receipt of this notice, but not that he 
agreed to file it. John Dixon, a director and former president of the 
company, swears positively that Ourtis did agree to file the notic^e in 
a letter to him dated December 5, 1893. He did not file it, bat on 
January 1, 1894, re-located the claim, under the name of the Black 
Bock Consolidated lode claim, and on May 2, 1894, made a conveyance 
of the same to said Kelly. Kelly made a location covering the Addenda 
ground and some additional ground, on June 18th following, which he 
called the Contention Mine, and subsequently made conveyances of 
one third interests, each, thereunder, to Cain and McCone. 

I am convinced from the evidence that Kelly knew of the relations 
between Curtis and the Addenda Company, and that Curtis had taken 
advantage of these in an attempt to surreptitiously gain possession of 
the company's claim ; and am also convinced that the company attempted 
in good faith to comply with the act last above mentioned, and supposed, 
until long afterward, that it had duly complied. There was no inten- 
tion on the part of the company to abandon the claim. It must be con* 
ceded, however, that the company did not in fact comply with the said 
act. But the law, generally speaking, does not look with favor upon 
a forfeiture of property, and the Department is not, therefore, disposed 
to extend any aid toward these protestants in their insistence upon a 
forfeiture, under all the circumstances, but, on the contrary, to construe 
the law in the case strictly against them. 

They are not here as adverse claimants in any sense under the min- 
ing laws, but merely as amici cttncp— friends of the court. They have 
a right to protest under section 2325 of the mining laws (Revised 
Statutes), but no right to contest. They may not assert any claim as 
against the applicant for patent, but only challenge the applicant's 
claims under the law (Wight t?. Dubois et al, 21 Fed. Rep., 693). The 
judgment on the suit to quiet title which protestants set up and which 
appears to have become final on failure of the company to appeal there- 
from within a year from the entry thereof (Sec. 939 Cala. Code of Civil 
Procedure — Deering), is not a judgment on an adverse claim, and not, 
therefore, effective against the company in their proceedings for patent. 

Although Curtis testifies that the assessment work done on the 
Addenda under his supervision from 1886 to 1892, inclusive, was done 
perfunctorily, contributed little if at all to the development of the 
claim, and that only $95 of the $100 sent him was applied toward 
actual labor thereon, the other five dollars going to pay for recording 
the affidavit of labor, the company is shown to have been in unques- 
tioned possession during all that time, and I think it may be safely 
held that the work was a sufficient compliance with the mining laws 



DECISIONS RELATING TO THE PUBLIC LANDS. 21 

in the absence of any attempted re-location during that time, or any 
adverse claim. Under a state of facts analogous to the present case 
the Department held, in Stewart et al. v, Hees et ah (21 L. D., 446), 
under authority of section 2332 of the Bevised Statutes, and the cases 
cited, that — 

If the claimaot has been in possession and worked the Jaw Bone [mining claim] 
for the period prescribed by the statateof limitations for miniqg claims in Montana, 
prior to the re-loc»tion by the protestants, he is entitled to have the same passed to 
patent, at least aa against these protestants (Glacier r. Willis, 127 U.S., 471; 420 
Mining Co. v. Bullion Co., 1 Mont. M. R., 114). 

The Jaw Bone mining claim was located in Montana, but section 
2332 of the lievised Statutes is applicable to mining claims in any 
** State or Territory." It reads — 

Where snch person or association, they and their grantors, have held and worked 
their claims for a period equal to the time prescribed by the statute of limitations 
for mining claims of the State or Territory where the same may be situated, evidence 
of such possession and working of the claims for snch period shall be sufficient to 
establish a right to a patent thereto under this chapter, in the absence of auy adverse 
claim ; but nothing in this chapter shall be deemed to impair any lien which may 
have attached in any way whatever to any mining claim or property thereto ajttached 
prior to the issuance of a patent. 

• The 'Hime prescribed by the statute of limitations for miping claims" 
in California is five years. A mining claim in California is real estate 
(John Melton ei ah v. Orville D. Lambard, 51 Cal., 258), and the x>driod 
of limitation as to actions for the recovery of real estate is five years 
from seizin or i)ossession of '* the plaintifif, his ancestor, predecessor 
or grantor." (Sec. 318 Oal. Code of Civil Procedure — Deering; and 
Morris r. De Cells, 51 Cal., 55.) The Addenda company having held 
and worked its claim continuously for more than five years immediately 
prior to the alleged re-location, it is, under section 2332 of the Revised 
Statutes, and Stewart et aL r. Bees et al, {supra), entitled to have the 
same passed to patent, as against these protestants. 

Your offic^decision of January 9, 1896, herein, is accordingly reversed, 
and said protest dismissed, and you will pass the Addenda claim to 
patent, subject, however, to any objections appearing in the record and 
not herein considered. 



RATLROAD GRANT-LANDS EXCEPTEI>-PREE>rPTION FILING. 

Northern Pacific B. E. Co. v. Booers. 

Land embraced wUhin a pre-emption filing of record at the time when a railroad 
grant becomes effective is ex(*epted from the operation of the grant, and the 
company in snch case is not entitled to question the legality of the filhig or the 
qualifications of the pre-emptor. 

Secretary Francis to the Commissioner of the General Land Office, Jan- 
(I. H. L.) uary 8, 1897. (P. J. C.) 

The land involved in this appeal is the SE. \ of the NE. \ and lots 
1 and 2, Sec. 5, Tp. 1 N., B. 4 W., Helena, Montana, land district, and 



22 DECISIONS RELATING TO THE PUBLIC LANDS. 

is within the primary limits of the grant to the Northern Pacific Eail- 
road Company, as shown by its map of definite location filed July 67 
1882. It is also within the limits of the withdrawal on general roate, 
which became effective February 21, 1872, and was listed by the com- 
pany (list No. 12), July 28, 1886. 

It appears that one John Paul filed pre-emption declaratory state- 
ment for the tracts, April 24, 1871, alleging settlement March 1, previ- 
ous. He subsequently offered final proof, which was rejected by the 
local officers, because he was not qualified to file for or enter the land» 
for the reason that he had prior thereto completed a pre-emption for 
land in Colorado, upon which patent had issued. After the rejectioa 
of his final proof he entered into a contract to purchase the land of the 
railroad company. It also appears that one Bennett Degenhart, on 
December 27, 1883, presented his application to make homestead entry 
of said tract, alleging settlement in July, 1882, and on the protest of 
the railroad comxmny against the acceptance of the same a hearing wa» 
had, and on final appeal to the Department Degenhart's application 
was rejected. (Degenhart v. ^Northern Pacific, 15 L. D., 159.) A 
motion for review of this decision was denied, December 21, 1892, and 
the case against Degenhart was formally closed on the records of your 
office. 

The present controversy arises on the application of Thomas B. 
Bogers, filed in the local office August 21, 1895, to make homestead 
entry of the tract, on the ground that under the decision of Supreme 
Court in Whitney v, Taylor (158 U. S., 85,) the preemption filing of 
John Paul, existing of record on February 21, 1872, the date of the 
withdrawal of lands within the Unfits of the grant, excepted the land 
fi*om the operation thereof. 

On consideration of this application your office, by letter of Septem- 
ber 23, 1895, decided that, under the doctrine of the Whitney -Taylor 
case, the land was excepted from the grant. The connection of the 
other parties with the case was stated, substantially, as above, thea 
the following order was made : 

Should this decision holding the company's list for cancellation as to the land 
involved become final, and should it appear upon an investigation that Paul and 
Degenhart have abandoned their respective interests in said land, Mr. Rogers will 
be permitted to make homestead entry therefor, in accordance with his original 
application, but not otherwise. If Mr.^ Paul is, as he claims, a bona fide purchaser 
of the land f^om the railroad company, it would appear that he is entitled to relief 
under act of March 3, 1887, and in any case should the railroad claim be eliminatec^ 
and other parties set up a claim to the land, a hearing will be necessary in order to 
determine the respective rights of all adverse claimants. 

From this judgment the railroad company has appealed, assigning 
as error, (1) in holding the expired pre-emption filing of John Paul was 
sufficient to except this land from the operation of the grant, and (2) 
for any reason to have rejected the claim of the company. 

It is contended by counsel that, inasmuch as the question as to the 



DECISIONS RELATING TO THE PUBLIC LANDS. 2$ 

right of the company to select this land was decided in its favor in the 
case of Degenhart 17. Korthern Pacific that this case is stare decisis; 
that the decision in that case 

should be conclusive, aud inasmuch as it was then affirmatively found that Paul was 
not a qualified pre-emptor, it necessarily follows that his filing was au absolute 
nullity, and could have no possible effect upon the operation of the railroad grant* 

I do not conceive this position of counsel to be sound. It is shown 
that Paul's filing was of record and uncanceled at the date of with- 
drawal on general route, and also of definite location. Under the 
doctrine of the Whitney-Taylor case, as construed by the Department 
in Fish v. Northern Pacific (23 L. D., 15), this filing excepted the land 
from the grant, and the company can not be heard to question the 
legality of the filing or the qualifications of the pre-emptor. The4»st 
should be : was there a filing on record at the time. If there was, it 
was then simply a question between the government and entryman, in 
which the railroad company would not be permitted to be heard. 

Tour office judgment is therefore affirmed. 



ADDITION AJL HOMESTEAD ENTRT— SECTION 6, ACT OF MARCH «, 1889.- 

Wallace H. Hebbick. 

The right to make additional homestead entry under section 6, act of March 2, 1889, 
is limited to cases where the original entry was made prior to the passage of 
said act. 

Secretary Francis to the Commissioiier of the General Land Office^ Jan- 
(I. H. L.) nary 5, 1897. (S. V. P.y 

I have examined the record brought up by the appeal of Wallace H» 
Herrick from the decision of your office rendered October 10, 1895, 
rejecting his application to make homestead entry of lot 3, NW. J of 
the :»W. J Sec. 26, T. 27 N., R. 21 W., Missoula land district, Montana.' 

It appears that Herrick made said application August 7, 1895, stating 
in his preliminary affidavit 

I have heretofore made homestead entry of the SE. ^ of NW. ^ Sec. 26, T. 30 N.,. 
R. 21, for which I hold receiver's duplicate receipt No. 745^ issued May 2d^ 1895, at- 
U. S. local land office, Missoula, Montana. 

The local office rejected said application for the reason that " Wal- 
lace H. Herrick has exhausted his homestead right as shown by affi- 
davit accompanying the application, and by records of this office. See 
15 L. D., 285.^^ This action you affirmed on appeal. The record of the 
entry referred to in Herrick's preliminary affidavit accompanies the 
pai)ers sent up with his appeal, and it appears therefrom that said 
entry was made January 19, 1893, and commuted May 2, 1895. 

It 18 urged on behalf of appellant that he is entitled to make the entry 
in question under section six, act of March 2, 1889 (25 Stat., 854), which 
provides — 

That every person entitled under the provisions of the homestead laws to euter a> 



24 DECISIONS RELATING TO THE PUBLIC LANDS. 

bomestead, who han heretofore complied with or who shall hereafter comply with 
the conditioDS of said laws, and who shaU have made his final proof thereander for a 
quantity of land less than one hundred and sixty acres and received the receiver's 
final receipt therefor, shall be entitled under said laws to enter as a personal right, 
and not assignable, by legal subdivisions of the public lands of the United States 
subject to homestead entry, so much additional land, ns added to the quantity pre- 
viously so entered by him shall not exceed one hundred and sixty acres. 

In the departmental circular issued March 8, 1889 (8 L. D., 314), this 
provision was held applicable only in cases where the original entry was 
made prior to the passage of said act, and this construction has since 
been followed; John W. Cooper et al. (15 L. D., 285). 

The decision of your office is therefore affirmed. 



HOMESTEAD-SETTI^EMENT— TRADE AND BUSINESS. 

KoBTHERN Pacific R. E. Co. et al. v. Waldon. 

The homestead law does not contemplate that the right of entry shall be exercised 
T)y one who makes settlement primarily and chiefly for trade and business, and 
not for agricultural purposes. 

Secretary Francis to the CommiMtoner of the General Land Office^ Jan- 
(I. H. L.) Mary 18, 1897. (0. J. W.) 

On April 6, 1886, John S. Waldon made application to make home- 
stead entry for W. i SW. J, Sec. 5, T. 130 N., R. 79 W., Bismarck, 
North Dakota, land district. The local officers rejected his application, 
and on appeal by him to your office, their decision was reversed, and 
on June 30, 1886, Waldon made homestead entry, No. 4317, for S. i 
SW. J, Sec. 5, T. 130 K, R. 79 W. Waldon gave notice of his intention 
to make final proof August 19, 1889. The taking of such proof was 
adjourned to August 26, 1889, at which time John A. Rea^ as attorney 
for James G. Pitts and James McLaughlin, and F. M. Dudley and 
William H. Francis, attorneys for the Northern Pacific Railroad Com- 
pany filed protests against the allowance of Waldon's proof. The land 
js within the indemnity limits of said railroad company, and was 
embraced in list 26 of its selection, filed January 8, 1885. 

By letter " F" of March 20, 1895, the case was closed adversely to 
the right of the company to the land. The protestants do not under- 
take to set up any prior right in themselves but allege that Waldon 
never settled upon the land in good faith, intending to claim the same 
under the settlement laws; that at the date of the alleged settlement 
the land was not legally subject to either homestead or pre-emption 
settlement; that the entry and alleged settlement were illegal, made in 
fraud and bad faith and for the purpose of speculation and trade, and 
that Waldon has failed to meet the requirements of the homestead laW| 
as to residence upon and cultivation of the laud claimed by him. A 
hearing was ha<l August 27, 1889, with all parties present. 



DECISIONS RELATING TO THE PUBLIC LANDS. ?5. 

December 21, 1889, the local officers rejected WaldoD's final proof. 
Waldon appealed to your office, and on May IS, 189u, your office 
affirmed the decision of the local officers and held his entry for cancel- 
lation. From this decision Waldon appeals, alleging the following 
errors: 

1st. In finding that Waldon went on the land in question fur the purpose of en;;ag- 
iDg in the hotel bafliness. 

2d. In finding that at the time he made settlement on the land in coutroveray the 
same was used for the purpose of trade and businesd in the meaning of Sec. 2258 K. S. 

3d. In holding that said land was not subject to entry because used for trade and 
business. 

The protestants having alleged no right in themselves to the land in 
question, the case will be considered only as between the government 
and Waldon. If it be true that his settlement was made for speculative 
purposes, and that he went upon the land for the i^urpose of engaging 
in the hotel business, his entry nominally for homestead purposes was 
a fraud and unauthorized. The evidence of other witnesses, together 
with Waldon's admissions, leave no room for doubt as to the purpose 
of his settlement made in July, 1884, on a surveyed town lot, the bound- 
aries of which were recognized and conformed to, in the erection of his 
building, a plat of the town having been filed with the register of deeds 
for Emmons county on June 3, 1884. In ^November, 1884, three months 
after the commencement of his settlement, he had published in the 
newspaper the following advertisement: 

• 

Merchants Hotel, Winona, D. T. 
John Waldon, Proprietor. 
This house is condncted in a first class manner, and every attention is paid to the 
comfort and convenience of travelers, the building is twenty-four by tifty, two 
stories high. The hotel is well furnished and the culinary department is well sup- 
plied with everything the market affords. If you have occasion to visit the beauti- 
ful and growing city of Winona do not forget to visit the Merchants. 

The short interval between Waldon's settlement and the appearance 
of the advertisement quoted, had been presumably occupied in the 
building of the twenty-five hundred dollar house described. Any effort 
to find evidence of a settlement for agricultural and homestead pur- 
poses, in the acts performed by Waldon, or the language used by him 
in proclaiming his business and location, would prove useless. Waldon 
evidently appears to much better advantage as a stirring enterprising 
man of business with speculative projects in mind, than as a pioneer 
agricultural homeseeker, under the homestead laws. This is not said 
to his discredit, since it is not the policy of the law to discourage enter- 
prise and industry, in any legitimate pursuit. The law, however, does 
not permit benefits which it confers upon homesteaders, to be appropri- 
ated by those who do not contemplate the use of the land for agricul- 
tural purposes, but for business and speculative purposes. It is not 
unlawful to make settlements for business purposes, but where such 
settlements are made, the rights thereby initiated must be perfected 



26 DECISIONS RELATING TO THE PUBLIC LANDS. 

under the townsite and not under the homestead laws. So far as t^e 
record indicates its status, the town of Winona is unincorporated, and 
no entry of lands has been made for the benefit of its inhabitants. 
Affidavits which are a part of the record indicate that improvements 
located on a forty of the SW. J, including Waldon's hotel, are worth' 
five thousand dollars. As Wuldon's improvements are worth $2,500, 
if he was permitted to perfect title to the land through his entry, he- 
would thus become possessed of improvements to the value of $2,500 
made by others. While these improvements in the form of business' 
houses continue to be used and occupied for purposes of trade and 
business, the laud is not subject to entry as a homestead, but may be 
applied for under the townsite laws. It is not decided that if Waldon 
had made his settlement in advance of any others, and for homestead 
purposes, that the entertainment of the public at his homo for profit,' 
would forfeit his right to perfect his title under his homestead entry, 
but the evidence shows that not only was the building of a town on 
this land in contemplation, but that at least three buildings were con-* 
structed, or in process of construction on this quarter, before Waldon 
made his settlement and commenced the erection of his hotel, and under 
such circumstances he must be held to have made his settlement ])ri- 
marily and chiefly for trade and business, and not for agricultural 
purposes. 
Your office decision is therefore affirmed. 



SWAMP LAND— HOMESTEAI>— ACT OF JUNE 17, 189«. 

HoLCOMB r. State of California. 

The preferred right of homestead entry accorded to actual settlers, by the act of 
June 17, 1892, opening the Klamath River Indian reservation, does not extend to 
lands returned as swamp and overflowed, and so represented on the approved, 
township surveys and plats. 

Secretary Francis to the Commiscioner of the General Land Office^ Jan- 
(L H. L.) uary 18, 1897. (0. J. G.) 

Phineas D. Holcomb has file<l an appeal from your office decision of 
June 7 J 1895, holding for cancellation his homestead entry, made May 
22, 1804, for lot 5, Sec. 3, and lots 8 and 9, Sec. 4, T. 13 N., R. 1 E., Hum- 
boldt land district, California, to the extent that his said entry conflicts 
with the claim of the State under the swamp land grant. 

The above described land is within what was the Klamath River 
Indian reservation in the State of California, set apart and reserved 
under authority of law by an executive order dated ^November 16, 1855. 

The land is also claimed by the State of California under the swamp 
land grant of September 28, 1850 (9 Stat., 519). 



DECISIONS RELATING TO THE PUBLIC LANDS. S7 

The act of July 23, 1866 (14 Stat, 218), as incorporated in section 
2488 of the Revised Statutes, provides as follows : 

It shall be the duty of the Commissioner of the General Land Office, to certify 
over to the State of California as swamp and overflowed lands, all the lands repre> 
sented as snch npon the approved township surveys and plats, whether made before 
or after the 23d day of July, 1866, under the authority of the United States. 

Surveys and plats of the township in which the land in question is 
situated were made in the years 1878, 1881 and 1886. The lands within 
these surveys were returned as swamp. The map of survey, conform- 
able to the field notes on tile in the Humboldt land office, was approved 
July 30, 1889, and the tract in question was therein segregated and 
designated as swamp land. 

It was upon the above showing that your office held Holcomb's 
homestead entry for cancellation, as being in conflict with the claim of 
the State of California. 

Under the act of June 17, 1892 (27 Stat., 52), the lands embraced in 
what was Klamath liiver Indian reservation were opened to settlement 
under the laws of the United States granting homestead rights, and it 
was stated in the second proviso of the act as follows: 

And any person entitled to the benefits of the homestead laws of the United States 
who hajs in good faith prior to the passage of this act, made actual settlement upon 
any lands within said reservation not allotted under the foregoing proviso and not 
reserved for the permanent use and occupation of any village or settlement of 
Indians, with the intent to enter the same under the homestead law shall have the 
preferred right, at the expiration of said period of one year to enter and acquire 
title to the land so settled npon. 

It is under the above act that the apx)ellant herein prefers his claim. 
In his appeal to this Department he alleges that the land in question 
is not swamp and overflowed land. In face of the return made by the 
U. S. surveyor-general for the State of California as to the cbaracter of 
this land, and numerous decisions governing such matters, it would 
seem that the appellant's allegation is impotent to change the ruling 
made by your office. In the case of State of California (23 L. D., L'30, 
on review), vacating departmental decision of March 17, 1892 (14 L. D., 
253), it was held : 

Under the first paragraph of section 2488 R. S., the return of the land as swamp 
and overflowed, by the U. S. surveyor-general for the State of California, is conclu- 
sive evidence as to the character of the land so returned and represented as such on 
the approved township surveys and plats ; and lands thus returned must be certified 
to the State as inuring thereto under the swamp grant. 

In State of California v. United States (3 L. D., 621) referring to the 
first clause of section 4, act of July 23; 18G6 (supra), it was said — 

Under this clause, it is clear that the State has no valid claim to the land in ques- 
tion, unless it is represented upon tbe approved township survey and plat, as swamp 
and oversowed land, and, if the tract is so represented, then it matters not what 
the real character of the land is, whether swamp and overflowed or dry, the State is 
entitled to the tract. Central Pacific {{. R. Co. r. California (4 C. L. O., 151). 



28 DECISIONS BELATINO TO THE PUBLIC LANDS. 

In Heath v. Wallace (138 U, B.^ 573), referring to the same section, 
the court said — 

As held in Tubbs r. Wilhoit, supra, this section of the statute established rules or 
methods for the identification of swamp and overflowed lands in California, which 
superseded all previous rules or methods for that purpose. The several rules or 
methods provided for were intended to meet any emergency that might arise, and 
thus give to the State all the swnmp and overflowed lands within her limits. The 
method provided in the flrst clause was but one of several specified in the section. 
But one thing was required to be shown under this clause — only one kind of evidence 
as to the character of the lands was necessary — in order to give the State the right 
to demand the certiflcation cf them over to her as swamp and overflowed lands; and 
that evidence the United States furnished in the plat of the survey of the township 
in which the lands were situated. An inspection of the township plat would show 
whether or not any lands iu the township were returned as swaiup and overflowed. 
If they were, that designation was sufficient and conclnsive evidence, under the first 
clause of section 4 of the act, to establish the title of the State to them. 

The swamp land grant to the State of California was a grant in 
praesenti taking effect at the date of the passage of the act (Wright r. 
Eoseberry, 121 U. S., 488). In his appeal to this Department Holcomb 
alleges that he settled on the land in question in the year 1883. He also 
contends that the terms "all of the lands '' and "any lands'' employed 
in the act of June 17, 1892, supra^ cover bis claim. Prior to the passage 
of said act the land involved herein was embraced in the Klamath River 
Indian reservation. It is true that the act of June 17, 1892, recognizes 
the rights of settlers on this reservation, but at the same time it can 
not be successfully contended that the said act recognized such rights 
to be superior to those of the State under the swamp land grant. If 
his said alleged settlement had been made upon any lands within the 
reservation allotted under the first proviso of the act and reserved for 
the permanent use and occupation of any village or settlement of 
Indians, it would readily be conceded that such settlement by the 
appellant could not avail. The act of June 17, 1892, while not in terms 
excepting the lauds included in the swamp grant to the State, could not 
at the same time include them without express mention. It is a rea- 
sonable presumption that Congress intended by the said act to open to 
settlement only those lands owned by the United States, and that it 
had no intention of disposing of lands which had long since passed 
from government control. When, therefore, the phrase "all of the 
lands" was employed by Congress it is reasonable to suppose that all 
of the land not otherwise disposed of within the Klamath Biver Indian 
reservation, was meant. Fo other construction can be put ni>on the 
language of the act, unless it be held that Congress intended to repeal 
the swamp land act. This proposition is entirely too improbable to 
require serious consideration. * 

As heretofore set out a survey of the township in which this land 
is situated was made as early as 1878. All the township lines were 
completed in 1886. As was stated in the case of Heath v. WallacCi 
suproj an inspection of the townshii> ])lat would have shown whether 



DECISIONS RELATING TO THE PUBLIC LAND^. 29 

OfT not any lands in the towDsbip were returned as swamp aiid over- 
flowed. The appellant was thas charged with notice. 

The appellant claims that he has been discriminated against, in this^ 
that lands in this reservation returned as swamp have in certain cases 
been allotted to Indians. Provision is made in the act of June 17, 1892, 
for the allotment of lands within the reservation to the Indians under 
certain conditions. Without considering why allotments were made of 
lands returned as swamp in the particular instances cited by appellant, 
it is sufficient to say that such action could not inure to his benefit, nor 
justify the Department in allowing his entry on that account. Even 
though the said allotments were made through inadvertence or mistake, 
that fact could not avail as a reason why the Department should allow 
the api>ellant's claim in face of the prior approval of this land to the 
State under the swamp laud grant. 

The appellant likewise requests that action in this case be deferred 
pending the disposition by the superior court of the 3tate of a suit 
initiated for the purpose of determining the character of the land iu 
question. It would seem that nothing could be gained by awaiting the 
decision of said court as suggested. The Department would probably 
not interfere with the action heretofore taken in face of the decisions 
cited herein. That action is in harmony with the policy of the Depart- 
ment. Whatever the decision of said court may be, it could not inter- 
fere with the suggestion contained in your office decision regarding the 
procurement of a relinquishment from the State by the entryman. 

Your said office decision is hereby affirmed. 



KAILROAD GRANT— BENEFICIARY—LANDS EXCEPTED. 

Phillips v, Sioux City and Pacifio R. R. Co. (On Review). 

The effect of section 17, act of Jaly 2, 1864, was not to make a new grant but to pro- 
vide a new beneficiary under the original grant of July 1, 1862, as to the Sioux 
City branch, and said beneficiary could only take such lands as were capable of 
passing under the original grant; and would therefore not acquire title to lands 
that were a part of the bed of the Missouri river at the date of the original grant. 

Secretary- Francis to the Commissioner of the General Land Office^ Jan-- 
(L H. L.) uary 18, 1897. (J. L.) 

This case involves lots 10 and 11 of section 1, and lot 1 of section 2, 
containing in the aggregate 59.60 acres, in O'Neill land district, 
Nebraska, in a township and range designated sometimes n>s T. 88 N., 
R. 48 W., of "oth" principal meridian, Dakota Territory, and sometimes 
as T. 29 N., R. 8 E., of "6th" principal meridian, Nebraska. 

The facts are stated in the departmental decision of March 24, 1896, 
published in 22 L. D., 341. The decision was, that by the acts of July 
I9I862 (12 Statutes, 489), and July 2, 1864 (13 Statutes, 356), Gougress 



30 DECISIONS RELATING TO THE PUBUC LANDS. 

did not intend to grant in presenti, as public land for railroad purposes, 
a part of the bed of the Missouri river, which was then and from time 
immemorial had been covered by the waters of its main channel ; and 
that therefore the lots of land in controversy did not pass under the 
grant. 

The case is now before the Department for reconsideration ui>on a 
motion for review of said decision, filed by the "Missouri Valley Land 
Company, as successors in interest of the Sioux City aud Pacific Rail- 
road Company, and present owner of the land grant for the benefit of 
the latter company;" which motion has been entertained. 

The specifications of error filed with the motion and the brief of coun- 
sel filed in support thereof allege matters both of law and of fact, and 
claim, substantially, that under the 17th section of the act of July 2, 
1864, amending the 14th section of the act of July 1, 1862, the grant 
under which the Sioux City and Pacific Bailroad Company claimed 
was not a grant in presentiy but was a conditional grant, intended to 
take effect infuturo, upon and after the 

hftppening of certain contiugenciea, namely^ that a company should be found wiU- 
ing to accept the grant and to carry out the purposes of the law ; second, that the 
President should designate such company to that end; third/ that a road should be 
built across Iowa or Minnesota to Sioux City; and fourth, in the absence of tiie con- 
struction of a road to Sioux City as aforesaid, then such road (or company) as should 
accept the promised grant by the act of 1864, might after the lapse of eighteen 
months from the enactment thereof proceed to the construction of the road contem- 
plated by said grant. 

In specification 5, it is claimed, that 

the grant by the said 17th section not being in preaenti, but rather the promise of the 
future conveyance of lauds, did not become operative, and the title did not vest 
until the definite location of the road on January 4, 1868. 

The facts alleged by counsel, and the facts developed by reference to 
the records of your office, so far as material, are: 

1. That on December 24, 1864, the President by its request desig- 
nated the Sioux City and Pacific Bailroad Company to construct the 
trailroad from Sioux City westwardly under the 17th section of the act 
of 1864. Said company filed its map of general route on June 27, 1865, 
and its map of definite location on January 4, 1868. 

2. That in the spring of the year 1867, the Missouri river by an 
extraordinary avulsion cut for itself a new channel, and left its old 
bed, which includes the lots in controversy. The surveyor general's 
report, dated May 20, 1868, shows that at that datCj the greater part of 
the 59.60 acres in contest was covered with the waters of an oblong 
lake following in its length the courses of the old bed of the river, and 
found to be impassable by the surveyor who had been sent out on April 
30, 1868, to examine, survey and report upon the changes made by said 
avulsion. The waters of said lake were evidently waters lefb by the 
Missouri river, which had not evaporated or been absorbed enough to 
uncover the land. It is a fair inference as matter of fact, that on 



DECISIONS EELATING TO THE PUBLIC LANDS. 31 

January 4, 1808, the date of definite location, nearly if not quite all of 
the land in contest was covered by said lake. 

From the standpoint of the railroad company, the foregoing facts 
suggest for consideration by the Department three questions : Whether 
under the grant title passed to the company, on December 24, 1864, the 
date of the President's designation by request; or on June 27,1865, 
the date of the filing of the map of general route, which was certainly 
an acceptance by the company of the Presidential designation; or on 
January 4, 1868, the date of the definite location ? 

This Department is of opinion that the acts of July 1, 1862, and July 
2, 1864, were laws of the land, as well as grants of public property, 
and that the grants of certain odd-numbered sections of public land 
described in the act of 1862 were grants in presenti. The Union Pacific 
Railroad Company, a corporation provided for by said act, and the 
grantee named therein, was not then in existence, and did not come 
into existence for several months after the passage of the act, upon 
compliance with the terms and conditions prescribed by Congress. 
Whatever may have been the common law rule in respect to the neces- 
sity for a grantee in esse at the date of a grant, it was so far modified 
by the act of Congress, that the non existence of the grantee at the 
date of the grant did not in this case prevent the grant from taking 
effect immediately. 

In the case of the Missouri, etc., B. K. Co. v. Kansas Pacific B.B. Co. 
(97 U. S., 497), the court said : 

It is always to be borne iu mind in construing a congressional grant, that the act 
by which it is made, is a law as well as a conveyance, and that such effect must be 
given to it as wiU carry out the intent of Congress. That intent should not be 
defeated by applying t-o the grant the rules of the common law, which are properly 
applicable only as to transfers between private parties. 

By the 17th section of the act of 1864, Congress released the Union 
Pacific Railroad Company from its obligation to build the branch from 
Sioux City westward, and provided for the substitution of another 
grantee of the lands previously granted to aid in the construction of 
said branch, to be thereafter designated and ai)proved by the Presi- 
dent. The effect of this legislation was not to make a new grant but 
to provide a new beneficiary under the original grant of July, 1862, as 
to said branch. Such new beneficiary was to be entitled, in aid of the 
construction of said branch, to the lands granted by the said original 
act. In other words, it was to take and could take such lands only as 
were in existence at the date of said original act, and of the character 
described therein, and capable of passing thereunder. 

It is therefore held that upon the designation and approval by the 
President, on the request of the company, as provided, the lands 
granted by the original act iu aid of the Sioux City branch, passed to 
the designated company; and that the lots of land here iu question 
being, at the date of the original grant of July, 1862, part of the bed 
of the Missouri river, did not pass to said new beneficiary company. 



32 DECISIONS EELATINQ TO THE PUBLIC LANDS. 

It is unnecessary to consider and decide any other question presented 
in connection with the application for review and reconsideration. For 
the reasons above stated the departmental decision of March 24, 1896^ 
is adhered to. 



OKLAHOMA L.ANI>S-SETTLEMENT RIGHTS. 

Bradford et al. v. Doty. 

Where tiiere is doabt as to the actual boundary of lands about to be opened to set- 
tlement, and a government official, for the purpose of securing equal opportnui- 
ties to all, designates a line from which the run shall be made, it is incnmbt^ut 
upon one who disregards such designation to show that by such action he gained 
no advantage over others. 

Secretary Francis to the Commissioner of the General Land Office, Jan- 
(I. H. L.) uary 18, 1897. (C. J. W.) 

On September 22, 1891, Charles J. Doty made homestead entry No. 
7761, lor lots 1 and 2 and the E. J of the WW. J, Sec. 18, T. 17 K, K. 1 
£., Gathrie, Oklahoma. 

On October 1, 1891, Harry Pulliam filed his affidavit of contest; aUvg- 
ing that Doty entered on and occapied said laud before noon of Sep- 
tember 22, 1891, and that he (Pulliam) settled on said laud immediately 
after twelve o'clock, noon, of September 22, 1891, before Doty or any 
one else had made a legal settlement thereon. 

On October 5, 1891, Nettie J. Bradford filed her affidavit of contest^ 
alleging that she made settlement on said land immediately after noon 
of September 22, 1891, and that she has improved the land, and resides 
on it, and that she made her settlement before either Doty or Pulliam 
and before Doty made entry. 

A hearing was had at the local office at Guthrie on March 29, 1892, 
at which all the parties appearea and submitted testimony. 

On December 17, 1892, the local officers found as follows: 

The land embraced in this proceeding lies immediately east of the meridian line 
in the Iowa country and north of Langston, Oklahoma. 

All of the parties, Doty, Pulliam, and Bradford, testify that they were along the 
meridian line at noon, September 22, 1891, and immediately after twelve o'clock of 
said day they stepped across the line, claimed and staked said tract of land as a 
homestead. As shown by the evidence in this case, exactly where the meridian line 
was, as understood by those congregated along the line at Pulliam's farm, was 
uncertain and unknown. Some of the people assembled there thought the fence of 
Pulliam (father of Harry) was on the line, and others were under the impression 
that the Iowa line was east of the fence. With this uncertainty touching the Iowa 
or meridian line the bour of twelve o'clock, September 22, 1891, arrived, and at the 
signal given by the marshal *' to go,*' the respective parties according to their tes- 
timony ''rushed*' on the claim in dispute and set their stakes and claimed the 
same as a homestead a few seconds after twelve o'clock noon, September 22, 1891, 
The substance of the testimony of Lillian Hewitt is, that she was '^standing right 
west of the gap cut by Harry Pulliam in his father's wire fence, and that Harry 



DECISIONS KELATING TO THE PUBLIC LANDS 33 

Palliam was also standing west of the gap, and when the word was given *Ho 
go,'' Harry PuUiam ran and stack his. stake on the claim in controversy; that 
Doty stood to the south of the post where the wire was cat, and on the east side of 
the fence; that Mr. Rlggs told Doty that he had better step back inside of the fence 
or he woald be a ** sooner;'' that Doty paid no attention to the suggestion of Mr. 
Higgs; that Harry Pulliam stuck his stake before Doty did his on "that corner;" 
that PoUiam's stake was six or eight feet Arom the line or wire fence. The testimony 
of Samuel Dennison discloses that PuUiam has almost 160 acres fenced ''lacking a 
little;" that Doty has about three acres broken; that no cornerstone was found, 
and that witness did not know where the correct corner stones were located. 

Nathaniel H. Potter testified that he was on the line of the Iowa country Sep- 
tember 22, 1891, and saw Miss Nettie J. Bradford standing near the corner of the 
land in contest with a board or stake in her hand, and that she has continuously 
resided on said claim. 

The testimony of James Miller discloses that Miss Bradford has been living on 
the claim in dispute from the 8th of November to April, 1892. 

Ab shown by the testimony of Charles Gandell, Miss Bradford on the opening day 
was at the comer post of Mr. Pulliam's fence and jumped over and stuck her stake 
there like the rest of them did. 

Miss Nettie J. Bradford testified that she made settlement on the land in contro- 
versy directly after twelve O'clock September 22, 1891, and when the signal was 
given she stepped four or five steps and set her stake. It will be noticed that Miss 
Bradford was standing near the northwest corner of the land iu contest and about 
half a mile north of Doty and Pulliam, at noon of September 22, 1891. By implica- 
tion Nettie J. Bradford and Harry Pulliam in their contest affidavits charge Charles 
J. Doty with having entered upon and occupied said tract of land in violation of 
law and the President's proclamation. If we are correct in our conclusions to this 
implied charge on the part of ^iss Bradford and Harry Pulliam against said Doty, 
it necessarily follows, in our judgment, that they admit that Doty made prior set- 
tlement upon the land in dispute September 22, 1891. In our opinion Doty located 
on said tract of land on the opening day as quickly as either of the other parties in 
this proceeding. Doty, however, testified that he was standing on the east side of 
the fence with one leg under the wire; that no one spoke to him or said anything 
about being a *' sooner;" that there was no one spoke to him or laid their hands on 
him outside of Mr. Ballard (the marshal); that the first intimation he received in 
regard to being a ''sooner" was after he had stuck his stakes. As between Doty 
and Palliam, Doty testified that he did not know which of them stuck his stake 
first on the claim in controversy (page 389).. The testimony of Harry Pulliam 
touching the time when he ''jumped across the line and stuck a stake the first 
thing" in substance is, that Doty was standing southeast of Pulliam on the east 
line of the wire fence and immediately after the run Doty was noticed by Pulliam 
a little south and a little west distant about eight or ten feet (page 323). According 
to Pulliam's testimony. Doty being a little south and a little west of Pulliam is 
evidence that he had not traveled as far as Pulliam from the line, and therefore 
everything being equal (and there is no evidence to the contrary) stuck his stake 
first, possibly. 

The testimony, however, of Doty on this point controls our judgment, inasmuch as 
he testified that he did not know whether Pulliam stuck his stake first or not, 
therefore we accept his testimony and the testimony of Pulliam and Miss Bradford, 
and find that we do not know from the evidence in this case which one of the parties 
in this proceeding, Doty, Pulliam, or Miss Bradford, first made settlement ou the 
claim in dispate in the afternoon of September 22, 1891. So far as the meridian line 
being where the east wire fence was located on Pulliam's claim is concerned, the 
snbstance of E. C. Dodd's testimony on this question is, that by using a transit as 
testified to by F. S. Pulliam, accuracy could not be obtained ; and that in order to 
10671— VOL 24 3 



34 DECISIONS RELATIKG TO THE PUBLIC LANDS. 

secure accnntry, the proper deflection of the needle, the difference of time from 
the original survey, the proper variations and the solar system would be necessary 
to secure accuracy. 

F. S. Pulliam in his testimony disagrees with Surveyors McCoombs and Dodd, as 
to the correct method of ascertaining the meridian, standard correction and town- 
ship lines. Mr. Pulliam testifies that at the time he boilt his fence the Iowa reserva- 
tion had not been allotted, and that he put his fence on the cast side of his claim in 
order to take in all of his ground on the east side of the same; that he knew that 
thirty-three feet on each side of the section line should be left for road purposes; 
that there was a trail along the east line of bis fence, and that a considerable num- 
ber of the people living north used this trail or road. On page 299 of record, Mr. 
Pulliam testified that he moved his first fence put along the east side of his claim, 
west about twenty feet, and that he intended to leave twenty feet "for the road;-' 
that he kuew that the law required thirty- three feet on each side of the section line 
should be left for a road, but did not believe the lawappfied to the boundary line of 
the Territory. By an act of Congress it is provided that a space of sixty -six feet 
shall be left between the sections in Oklahoma for the use of the public as a high- 
way ; we know of no law that provides for a different rule along the boundary line 
of the Territory which constitutes,' as claimed by F. S. Pulliam, forty feet insteati of 
sixt^'-six feet as a public highway along the boundary line of Oklahoma. If our 
position is correct in the premises, it follows, we think, that Pulliam's fence on the 
east side of his claim, according to his testimony, was thirteen feet west of the Iowa 
or meridian line on the opening day, and hence according to the evidence in this 
case, neither Pulliam nor Doty made their first settlement on the claim in dispute, but 
settled and staked upon Oklahoma lands homesteaded by F. S. Pulliam, father of 
contestant Harry Pulliam. However, the uncertainty about where the legal location 
of the meridian line was at the time and place when the respective parties made set- 
tlement on said claim in the afternoon of September 22, 1891, and the unusual cir- 
cumstances attending their settlement upon said tract of land, creates so many 
doubts in our judgment, that we cannot arrive at any conclusion in this case different 
from the findings of the Hon. Commissioner of the General Land Office in the case of 
Miranda O. Jackson, now Cox,ef al. v. Samuel G. Garrett (letter " H^' June 30, 1894). 
In the case referred to, the land immediately south of that in controversy was taken 
on the opening day by the parties mentioned in said decision under similar circum- 
stances as the one in dispute was taken by Doty, Pulliam and Miss Bradford, all of 
the parties on the opening day stepping across the line and claiming the respective 
tracts of land as a homestead. We are of the opinion that the rule applied by the 
Hon. Commissioner of the General Land Office in the case of Miranda O. Jackson et 
aL V. Garrett, so far as division, etc., applies in the case now before us. 

Therefore we recommend that Charles J. Doty, the entryman, Harry Pulliam, first 
contestant, and Nettie J. Bradford be allowed to make a division of the land in con- 
test, having regard for the legal subdivisions, and that if they are unable to come to 
an agreement that the claim be sold to the highest bidder of the three. 

From this decision Doty and Pulliam appealed to your office. 
On May 11, 1895, your office found as follows : 

So far as the evidence shows the facts, I am of the opinion that Doty violated the 
law by voluntarily and purposely entering on the land before noon of September 22, 
1891, and that he is, therefore, disqualified. Homestead entry No. 7761 is therefore 
held for cancellation. 

As both Miss Bradford and Pulliam have made a reasonable compliance with the 
law by their improvements and residence on the land, and as Miss Bradford's 
improvements are on the north half and Pulliam's principal improvements on the 
south half, it would be but equitable to divide the land between them, and it is so 
ordered. 



DECISIONS RELATING TO THE PUBLIC LANDS. 35 

From this decision Doty has appealed. The chief grounds of excep- 
tion to your office decision are, that it was error to hold: 

1. That he was a "sooner" and disqualified. 

2. That it was error to hold that the east line of PuUiam's fence was 
exactly on the meridian line, 

3. That it was error to hold that 

the belief that the Piilliam fence was on the meridian line was acted on by the 
deputy United States marshal on duty at that place, and who advised the parties 
there, September 22, 1891, for the purpose of making settlement, to remain on the 
west of said line until the signal was given, which advice seems to have been fol- 
lowed with very few exceptions. 

This last assignment of error presents the vital question in the case. 
The record sustains your office as to fact that the deputy U. S. marshal 
acted on the belief that the Pulliam fence was on the meridian line, 
which was acquiesced in by the bulk of the people present. For the 
purpose of securing equal chances to all, the officer in charge had the 
right to locate and point out the line from which all should start. 
Doty did not acquiesce in this decision and belief, but stayed outside, 
and made his start from the outside of the fence. Presumably, in so 
doinfi^ he acquired advantage over those who stood inside the fence, and 
he at least assumed the burden of being able to show that he gained 
no advantage over Pulliam and Miss Bradford by so remaining outside. 
This he has failed to do, and it follows that his entry must be canceled. 

This disposes of Doty's entry, and leaves the controversy between 
Pulliam and Miss Bradford. They seem to have made little eflfort to 
show any precedence of the one over the other as to the time each 
staked the claim. They are upon terms of equality in the matter of 
improvements. Neither the local officers nor your office has under- 
taken to settle the question of priority in settlement as between them. 
Miss Bradford has not appeared as an appellant at all. Pulliam has 
not appealed from your office decision, wherein you award half of the 
tract by subdivisions, on which her settlement and improvements are 
located, to Miss Bradford. Their consent to this adjustment is inferred, 
from their mutual acquiescence, and there being no longer an entry in 
question, your office decision is affirmed. 



SOr.DI£R8 ABDrriONAI* HOMESTKAD-CERTIFICATE OF RIGICT. 

John H. Howell. 

Soldiers additional homestead certificates of right, regularly issued, and located by 
boDA fide purchasers thereof, but thereafter canceled for illegality, and so remain- 
ing unsatisfied at the passage of the act of August 18, 18d4, are by said act vali- 
dated, and may be reissued for the benefit of a bona fide purchaser thereof. 

Secretary Francis to the Commiaaioner of the General Land Office^ Jan- 
(L H. L.) nary 18, 1897. (F. W. C.) 

With your office letter of December 12, 1896, were forwarded the 
papers in the matter of the appeal of John H. Howell from the action 



36 DECISIONS RELATING TO THE PUBLIC LANDS. 

of your office taken in the decision of October 12, 1896, denying his 
application for re-certification of the certificates of additional right 
under section 230G of the Eevised Statutes in the names of Mary Rol- 
lins, Bichard W. Hunt, and Lorenzo J. Rowland. 

This matter has been made special upon the recommendation of your 
office, it being stated that a decision thereon will form a precedent to 
be followed in other cases. 

The history of the certificates of additional right herein involved, as 
gathered from your office decision, is as follows: 

The certificate in the name of Rollins was located at Fargo, North 
Dakota, May 6, 1879. By your office letter " C " of June 10, 1884, the 
entry was adjudged illegal for the reason that the signatures of the 
witnesses and the entrymau are written by one and the same x>6i'son. 
Further, that the name of James F. Rollins, on whose account the cer- 
tificate was issued, is not found upon the rolls of Company ''A^ Second 
Arkansas Infantry, as claimed. The party in interest was therefore 
allowed sixty days within which to show cause why the entry made 
upon the location of said certificate should not be canceled, or apply to 
purchase the tract under the provisions of the act of June 15, 1880 (21 
Stat, 237). 

On September 10, 1884, Stephen E. Randall, who claimed to be tbe 
then owner of the land under transfer from the entryman, purchased 
the tract under the provisions of the act of June 15, 1880, and upon 
said cash purchase patent issued. 

The certificate issued in the name of Hunt was also located at Fargo, 
Forth Dakota, May 28, 1879, and by your office letter "C" of April 20, 
1882, Hans Larson, who claimed to be the party in interest under said 
entry, was informed that the papers ui)on which the entry was based 
were of doubtful execution and he was therefore allowed sixty days 
within which to establish the legality of the papers or file proper appli- 
cation to purchase tbe tract under the provisions of the act of June lo, 
1880 (supra)'. He availed himself of the latter jnivilege, and upon his 
purchase patent issued. 

The certificate issued in the name of Rowland was also located at 
Fargo, North Dakota, May 5, 1879. After said location Rowland filed 
an affidavit in which he charged that he never executed the papers 
upon which the certificate and entry were based, and upon the testi- 
mony taken at a hearing ordered on said allegation the certificate was 
held to have been fraudulently obtained and was canceled together with 
the entry made thereon. 

It appears that all three of the certificates before referred to were 
held by Charles D. Gilmore under powers of attorney which practically 
amounted to a sale of the right, in which the power to locate and to sell 
the land and to appropriate the proceeds thereof was given to Gilmore, 
the power being made irrevocable in consideration of the sum of one 
hundred dollars. 



DECISIONS RELATING TO THE PUBLIC LANDS. 37 

Gilmore it appears transferred these rights to William Milliken, whose 
same was snbstitated in the powers of attorney before referred to, and 
by said Milliken, as attorney in fact, the location of the certificates was 
made. 

These certificates it would appear were illegally obtained, but there 
is nothing in the papers to connect Milliken with the frauds, and your 
office decision in no wise questions the bona fides of his purchase. The 
certificates issued have never been satisfied: it appearing that two of 
the parties invoked the provisions of the act of June 15, 18S0, to enable 
them to purchase their lands, because of the "attempted" but inef- 
fectual transfer; and the other party losing the land entirely by cancel- 
lation of the entr3^ From an afBdavit executed by Howell, accompanied 
by a bill of sale executed by Sarah M., and Ida C. Milliken, it would 
appear that he (Howell) purchased the rights under said certificates 
from Sarah M. and Ida C. Milliken, the widow and surviving child of 
William Milliken, deceased, on August 1, 1806. 

Howell's application for re certification of the right was made under 
the act of August 18, 1894 (28 Stat., 397), as construed in the Pillsbury 
case (!i2 L. D., 699). Your office denies the application for the reason 
that two of the tracts covered by the location of the certificates of right, 
in the names of Eollins and Hunt, were perfected under the act of June 
15, 1880, 

and it is not shown that the parties who purchased the tracts from the government 
were reimharsed by MUIiken or his heirs for their outlay for a worthless title. 
(Farther) it appears of record that Howell drew the several entries above men- 
tioned from the files for examination at loast as early as June 15, 1896; hence, prior 
to his purchase of these certificates ho was aware of their invalidity. It is therefore 
held that he is not an innocent purchaser in the meaning of the act of August 18, 1894. 

These objections I do not deem su^cient ground upon which to deny 
the right applied for. 

As to the reimbursement to the persons who, in order to, secure title 
to the lands covered by the locations of these certificates issued in 
the name of Rollins and Hunt, were obliged to purchase the lands 
at the government price, this is purely a matter between the parties 
in the settlement of which this Department can have no interest, inas- 
much as the right to reimbursement, if any exists, cannot be regarded 
as a lien upon the certificates. 

The question remaining for consideration is, therefore, whether these 
certificates were confirmed by the act of August 18, 1894 {supra), for if 
they were, Howell did not on August 1, 1896, purchase invalid certifi- 
cates but validated certificates. 

In the case of John W. Eankin (on review 21 L. D., 404), it was held: 

Bnt in the light of the history of this legislation, I am constrained to believe that 
the words, ''all soldiers' additional homestead certificates heretofore issued/' etc., 
should not be limited to validating the transfer of certificates heretofore issued, and 
in the hands of bona fide holders. This view is strengthened by the fact that the 
matter of transfers is dealt with by the secimd section of the act, and the language 



38 DECISIONS RELATING TO THE PUBLIC LANDS. 

^'notwithstanding any attempted sale or transfer thereof/' at the end of the first 
flection, should not be construed to limit the operation of the act short of the obvioas 
intent of Congress. 

There is nothing in the record to question the bona fides of Milliken''s 
purchase of these certificates of additional right, and as the same were 
regularly issued by your oflSce and were never satisfied, under the 
decision just quoted from, it must be held that said certificates were 
validated by the act of August 18, 1>94 {supra). 

By his purchase Howell succeeds to the rights of Milliken's heirs, ami 
the action of your office denying his application for recertification of 
the right under said' certificates is reversed. 



ftOLDIER'S 1IOMESTKA13— TIME AX.LOWEl> FOU EXTKY. 

Caeney t\ Byers. 

A soldier who has filed a homestead declaratory statement is Entitled to six calendar 
months after such filing within which to make entr3^ and eommeuoe settlement 
and imx)rovemeut; and in the computation of such time the day of filing the 
declaratory statement should be excluded, and the last day of the specified 
period included. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(L H. L.) uary IS, 1897. (W. M. W.) 

The case of David W. Carney v. John M. Byers has been considered 
upon the appeal of the former from your office decision of August 1, 
1895, affirming the judgment of the local officers denying said Carney 
the right to make homestead entry under his soldier's declaratory state- 
ment, and dismissing his contest against the entry of Byers for the 
SW. J of Sec. 9, T. 20 N., R. 10 W., Alva, Oklahoma, land district. 

The record shows that on April 23, 1894, Carney filed soldier's declara- 
tory statement for the land in question. 

On October 23, 1894, Byers made homestead entry for the tract. 

On October 24, 1894, Carney made application to make homestead 
entry of the tract under his soldiers declaratory statement, which was 
rejected for contiict with Byers's entry. 

On the same day Carney filed an affidavit, in which he stated, among 
other things, after referring to Byers's entry: 

That said homestead entrj^ is fraudulent in this : That the said John M. Byers made 
said entry subject to the right of said David W. Carney, who had filed a soldier s 
declaratory statement for said tract of land April 23, 1894, and had made a valid set- 
tlement upon the same the last of July, 1894, hy going upon said land and building 
him a frame house and digging him a good well for water, and making other valuable 
improvements upon said land, and remaining upon said land till about the middle 
of September, 1894, and at which time he went down into the Chickaaaw country 
in the territory to look after a crop he had planted there the season prior to thivS 
time. And on the 17th day of September, 1894, ho started to the U. S. Land Office at 
Alva, O. T., to perfect his entry, or place his homestead entry upon said tract of hind, 
distance of about two hundred miles, and was driving over land when one of his 
horses became sick, and he did not reach the land office till on the morning of the 



f 



DECISIONS RELATING TO THE PUBLIC LANDS. 39 

24th day of October^ 1894, and he found out that one John M. Byers, the defendant, 
had filed said homestead entry on said tract of land the day before. And affiant now 
claims his right to enter said land on the grounds of prior settlement and improve- 
ment, and that he is the only person who ever made any settlement and improvement 
on said land. 

On May 6, 1895, the register and receiver sustained Byer^'s motion to 
dismiss Carney's contest. 
Carney appealed. 
On August 1, 1893, your office, after reciting the fiicts, found that: 

It follows that Carney can claim no rights under his Koklier's declaratory state- 
ment for more than six months from the date of his filing had elapsed >vhcn he 
attempted to make homestead entry of the land, and the tiling of a soldier's declara- 
tory statement exhausts the homestead right. 

Thereupon the judgment of the local officers was affirmed. 

Carney appeals. 

It is claimed in argument on behalf of Carney, that Byers's entry was 
made before the time had elapsed in which Carney had to appear at the 
local land office and tile his ^^ regular homestead affidavit." 

The material question for determination is, whether Carney made his 
application to enter within the time allowed therefor under the law. If 
his application to enter was made within the time allowed by law in 
cases of soldiers^ (declaratory statements, then it was erroneous for the 
register and receiver to reject his application, and your office decision 
affirming their judgment was erroneous. If his application was not filed 
within the time allowed by law to moke entry in such cases, there was 
no error in the judgments below. 

Section 2304 of the Revised Statutes allows every private soldier and 
officer who has served in the army of the United States during the 
recent rebellion for ninety days, and who was honorably discharged, 
and has remained loyal to the government, to enter one hundred and 
sixty acres, or one quarter section, of certain public lands, of the char- 
acter therein described, or of 

other landii subject to entry under the homestead laws of the United States; bat 
such homestead settler shall be allowed six mouths after locating his homestead and 
filing his declaratory statement, within which to make his entry and commence his 
settlement and improvement. 

Section 2309 provides : 

That every soldier, sailor, marine, officer, or other person coming within the )}to- 
visioDB of section two thousand three hundred and four, may, as well by an agent as 
in person, enter upon snch homestead by filing a declaratory statement, as in pre- 
emption cases ; but such claimant in person shall within the time prescribed make his 
actnal entry, commence settlements and improvements on the same, and thereafter 
falfiU aU the requirements of law. , 

As a matter of law, it is clear that a soldier who has filed a declara- 
tory statement is entitled to six months time after filing such declaratory 
statement to make his entry and commence his settlement and improve- 
ment. The term six months, as used in the statute, means calendar 
months. 



40 DECISIONS RELATING TO THE PUBLIC LANDS. 

When the computation of time is to be made from an act done, the 
role is to exclude the day on which the act is done, and include the last 
day in the specified period. 

In Sheets v, Selden's Lessee (2 Wallace. 177-190), the supreme court 
of the United States very clearly and concisely states the rule respectr 
ing the computation of time as follows: 

The general carrent of the modern aathorities on the interpretation of contracts, 
and alBO of statutes, where time is to be computed from a particular day or a partie- 
nlar event, as when an act is to be performed within a specified period /rom or afiir 
a day named, is to exclude the day thus designated, and to include the last day of 
the specified period. ''When the period allowed for doing an act,'^ says Mr. Chief 
Justice Bronson, "is to be reckoned from the making of a con tracts or the happening 
of any other evebt, the day on which the event happened may be regarded as an 
entirety, or a point of time; and so be excluded from the computation." 

Applying this doctrine to the case at bar, Carney was entitled to full 
six calendar months' time after the 23d day of April, 1894 — the date of 
filing his soldier's declaratory statement — in which to make his entry 
thereunder. Excluding the day on which Carney's soldier's declara. 
tory statement was filed, the six calendar months allowed him there- 
after in which to make his entry would expire with and includiug the 
24th day of October, 1894. His application to enter being offered on 
said date was in time, and should have been allowed. 

Byers's entry was made before Carney's six months to make entry 
under his declaratory statement had expired, and for that reason 
Byers's entry was made subject to Carney's right, under the law and 
regulations, to make his entry. Instead of rejecting Carney's applica- 
tion to enter under his soldier's declaratory statement for conflict with 
Byers's entry, Carney's application being made within the time allowed 
should, as a matter of right, have been allowed, and such allowance 
would have operated to exclude Byers's claim, and his entry should 
have been canceled. See General Circular, p. 23. 

Your office decision appealed from is therefore reversed, Byers's 
entry will be canceled, and Carney will be permitted to make entry of 
the tract under his application of October 24, 1894. 



RAILROAD GKAXT-IXl>E>rN^ITY SELEC^TIOX. 

KoRTHEBN Pacific R. R. Co. r. AYERt*. 

An indemnity selection of unsurveyed land should be canceled, not suspended to 

await survey. 
Prior to selection the lands within the indemnity limits of the Northern Pacific grant 

are open to settlement and entry. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 18, 1897. (J. L. McC.) 

I have considered the case of the Northern Pacific Railroad Com- 
pany V. Clara M. Ayers, involving her desert land entry for the E. § of 
Sec. 3, T. 8 N., R. 1. E., Bozcmau land district, Montana. 



I>ECI8I0N8 RELATING TO THE PUBLIC LANDS. 41 

The land described is within the indemnity limits of said railroad, 
and was included in the withdrawal of February 21, 1872, upon general 
Foate. Upon the definite location of the line of said road, on July 6, 
1882, it nv^as foand to be within the indemnity limits, and was ordered 
withdra^rn l>y your office letter of June 9, 1883. Said indemnity with- 
drawal, liowever, has been held to be without validity or eflfect, and 
consequently no bar to settlement and entry under the public land 
laws. 

On March. 20, 1885, the company selected lots 1, 2, 3, and 4, the SW. ^ 
of the IJIE. J, the S. i of the NW. i, and the N. i of the SW. 4, of said 
See. 3; and on June 23, 1885, it selected the SE. i of the NE. J of 
said section. 

Inasmncb as Clara M. Ayers' desert-land entry was made (August 5, 
1893), subsequently to the date of said selections by the company, the 
latter acquired the prior and paramount claim to such of the tracts as 
had been surveyed, to- wit, lots 1 and 2, and the SW. J of the NE. J of 
said Sec. 3 ; and your office, by decision of August 20, 1895, properly 
held the desert land entry for cancellation iu so far as it embraced said 
tracts. 

The SE. 4 of the NE. J of said Sec. 3 was, at the date of your said 
office decision, unsurveyed; your office therefore held that it was not 
subject to selection by the railroad company, and held its list for can- 
cellation in so far as it embraced said tract. 

The railroad company has appealed, alleging that your office was in 
error, (1) in holding that the SE. J of the NE. i was not subject to 
selection by the railroad company, because unsurveyed. It contends 
tbat — 

Instead of canceUing the company's selection for the SE. i of the N£. I of this 
seetion, the Commissioner should have suHpended the same to await acceptance of 
the survey. 

In the case of the Northern Pacific Kailroad Company (15 L. D., 8), 
tbe company selected lands of which it is said that ^^ after an examina- 
t>iou of the plats," it was "found practicable to protract the lines of 
survey of the a<]yoining sections of which survey had theretofore been 
made so as to include the two southwest quarters, selected by the com- 
pany." Your office rejected the selection. The company appealed, 
contending that — 

the establishment of the three comers and the snrvey of the exterior lines completed 
the field sorvey ; and making and tiling of the plat of the same by the surveyor 
f^eneral sufficiently identified the land to admit of their selection. 

But the Department affirmed said decision, saying: 

No plat of survey of the tracts in question was approved or on file in the district 
office or anywhere else at the date of the railroad selections; it follows that said 
selections were properly rejected. 

The selections were not suspended "to await the acceptance of the 
survey." I do not think that it would be proper practice to pursue 



42 DECISIONS RELATING TO THE PUBLIC LANDS. 

such a coarse, and allowing lands to be 'Hied up-' for an indefinite 
period by selections made prior to survey. If such " suspended" selec- 
tions were to be considered a bar to settlement or entry, tbey might 
better be allowed. If they were to be considered no bar thereto, they 
might better be canceled. 

(2). The company contends further that, inasmuch as the SE. J of the 
!NE. J was uusurveyed, "it was error not to have canceled the desert- 
land entry of Clara M. Ayers for the same." 

It having been decided that the railroad company has no valid claim 
to said SE. ^ of the NE. J, the question as to what course the govern- 
ment may pursue with regard to Mrs. Ayers' desert land entry for the 
same is one solely between the government and her, with which the 
railroad company has no concern. 

(3). The question as to whether land within the indemnity limits of 
said company is subject to settlement and entry prior to selection has 
been decided in the affirmative by the Department in the case of said 
company against Jennie L. Davis (19 L. D., 87), and many others. 

I concur in the conclusions reached by your office in the decision 
appealed from, and therefore affirm the same. 



K^ULROAD LAXnS-SECTION 5, ACT OF MARCH 3, 1887. 

Lincoln r. Sowers. 

The right of purchase under sectiou 5, act of March 3, 1887, is not defeated by a 
prior adverse application to enU'r under Trhich no settlement right is asserted. 

Land subject to indemnity selection, and sold to a purchaser in good faith, as a part 
of the grant, may be purchased under said section, though no selection of the 
land was made by the company. 

Secretary Francis to the Commissioner of the General Land Office^ Jan^ 
(1. H. L.) uary 18, li^97. (E. M. R.) 

This case involves the S>¥. i of the SE. J of See. 8, T. 84 N., R. 23 
W., Des Moines land district, Iowa. 

The record shows that your office, on July 8, 1875, ordered a hearino^ 
in the case of Edward W. Templeman r. Cedar Rapids and Missouri 
River Railroad Company, the former having applied to make soldier's 
additional homestead entry for the tract in controversy, together with 
other land. Subsequently, on February 13, 1879, your office notified 
the local officers that it was not necessary to have the hearing ordered, 
in view of the decision of the Department holding that a homestead 
entry of record, uncanceled, segregated the land and was sufficient to 
defeat the grant in behalf of the Cedar Rapids and Missouri River 
Railroad Company, made on June 2, 1864 (13 Stat., 9o), and the records 
of your office showing that one Becktels had made homestead entry for 
the tract on February 0, 1803, which remained of record until canceled 
on April 29, 1872. 1' our office therefore held that this tract of land was 



DECISIONS RELATING TO THE PUBLIC LANDS. 43 

excepted from the operation of the grant in behalf of said railroad com- 
pany. Of this action the attorneys for the railroad company were 
notified by letter of October 14, 1893, and the local officers were 
instructed to notify Templeman. On March 8, 1S94, the local officers 
reported that after repeated attempts they had failed to serve him. 

On June 26, 1894, the local officers transmitted the application of 
George B. Lincoln to make homestead entry of the land in controversy, 
and the alternative applications of James W. Sowers, either to enter or 
purchase under section 5 of the act of March 3, 1887. 

From the application of George B. Lincoln it appears that it was filed 
on June 14, 1894, and was rejected by the local officers because of the 
pending application of Templeman ; from which action Lincoln appealed, 
asserting that Templeman had no interest in and to this tract, as was 
shown by a letter from said Templeman to the attorney of Lincoln, 
dated Adel, Iowa, January 9, 1894, in which he said, 'M have taken up 
all of my government lands that are due me." It appears further that 
the attorney of Lincoln had sought for Templeman with the intention 
of purchasing his preference right, and that this was his reply to such 
attempt. 

In reference to the application of James W. Sowers, it appears that 
this was filed on June 18, 1894, — four days later than that of Lincoln, — 
and being rejected, Sowers took appeal. Sowers made application to 
enter as an adjoining farm homestead, he being the owner of the 
remainder of the said SE. ^. It further appears in his affidavit, that 
he sets forth that he and his grantors ^'have been in open, actual and 
peaceable possession" of said land '^from May 15, 1868, until the present 
time, claiming to be the owners thereof, and that my claim of title is 
derived as follows." And it further appears that the Cedar Bapids and 
Missouri Biver Bailroad Company, claiming this land under the said 
act of June 2, 1864, sold, on May 13, 1868, to one Francis B. Hughes; 
and then by regular conveyances of warranty deeds this tract came 
into possession of Sowers on February 14, 1880; and he asked that he 
be allowed to purchase. 

Your office decision of August 1, 1895, passing upon the issues thus 
joined, rejected the application of Lincoln and allowed Sowers to pur- 
chase under the act of March 3, 1887; from which action Lincoln 
appealed. 
The section under consideration is as follows (24 Stat., 556, Sec. 5) : 

That where any said company nliall have sold to citizens of the United States^ or 
to persons who have declared their intention to become such citizens, as a part of 
its grant, ]ands not conveyed to or for the use of such company, said lands being the 
Tinmbered sections prescribed in the grant, and being coterminous with the con- 
structed parts of said road, and where the lands so sold are for any reason excepted 
from the operation of the grant to said company, it shall be lawful for the bona fide 
purchaser thereof from said company, to make payment to the United States for said 
lands, at the ordinary government price for like lands, and thereupon, patents shall 
issue therefor to the said bona fide purchaser, his heirs or assigns : Provided j That 



44 DECISIONS RELATING TO THE PUBLIC LANDS. 

all lands shall be excepted from the provisions of this section, which, at the date 
of such sales, were in the bona fide occnpation of adverse claimants nnder the pre- 
emption or homestead laws of the United States, and whose claims and occupations 
have not since been voluntarily abandoned, as to which excepted lands the said pre- 
emption and homestead claimants shall be permitted to perfect their proofs and 
entries, and receive patents therefor : Provided fnriher^, That the said section shall 
not apply to lands settled upon, subsequent to the first da}' of December, eighteen 
hundred and eighty-two, by persons claiming to enter the same under the settlement 
laws of the United States, as to which lands the parties claiming the same, as afore- 
said, shall be entitled to prove up, and enter, as in other like cases. 

In the case of Jenkins et at. v. Dreyfus (19 L. D., 272), in construing 
said section, it was said (syllabus): 

The right of purchase nnder section 5, act of March 3, 18S7, is not defeated by an 
adverse application to enter made after the passage of said act, nor by an application 
to enter pending at the passage of said act under which no settlement right is alleged. 

And on the same line was decided the case of the Union Pacific Rail- 
road Company v. Norton (on review), 19 L. D., 524; and also tbe case 
of Setbman r. (31ise, 17 L. D., 307. 

It is further objected by tbe appellant, that this land being a part of 
an even numbered section, the above cited opinions have no bearing. 
While the even numbered sections within the primary limits were not 
specifically granted as lands in place, they were by the act of 1864 made 
subject to indemnity selection in satisfaction of a loss in place. See 
case of Cedar Eapids and Missouri River Railroad Company ef al, r. 
Herring (110 U. 8., 27), wherein it was held that the purpose of the said 
act of 1864, among other things, was — 

To adjust the amount of lands, to which the company would he entitled under this 
new order of things, and to enlarge the source ttom which selection might be made 
for the loss of that not found in place. 

And the court further said — 

This latter is accomplished by declaring that all the sections within the fifteen^ 
mile limits shall be subject to such selection on the same terms on which only alter- 
nate sections could previously be selected. 

Your office in its decision erred in treating this land as land within 
the primary limits and that the entry of Becktels excepted it from the 
operation of the grant. Being lands whereof indemnity selection could 
be made, the right of selection would exist at any time when the record 
was clear. 

In the case of Pierce et al. r. Musser-Sauntry Company (19 L. D., 136) 
it was held (syllabus) : 

Lands lying within railroad indemnity limits, not required in the final adjustment 
of the grant, nor selected on behalf of the same, but sold as a part of said grant to 
purchasers in good faith, are of the character subject. to purchase under section 5, 
act of March 3, 1887. 

This would seem to be ample authority for holding that Sowers' appli- 
cation to purchase should be allowed, though no selection was made of 
this tract by the company. 



DECISIONS RELATING TO THE PUBLIC LANDS. 45 

In the opinion supra it was said, in speaking of the title of the rail- 
road company, ^' It is not necessary that it should be a legal or valid 
one. It is sufficient if it be colorable." 

For the reason given your office decision is hereby affirmed. 



CONTEST AFFIDAVIT— ATTORXEY-NOTARY PUBLIC. 

Talley r. Gass. 

In thoee States or TerritoTies whose laws do not forbid an attorney to administer an 
oath to a client; the necessary oath to a contest affidavit may be administered 
by an officer or notary who is also the attorney of the contestant; bnt in States 
where the local laws forbid such practice it will not be allowed by the Land 
Department. 

The case of Werden r. Schlecht, 20 L. D., 523, overmled, and section 13, instmctions 
of December 15, 1885, 4 L. D., 297, modified. 

ikereiary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 18, 1897. \G. W. P.) 

George I. Talley has appealed from the decision of your office of July 
27, 1895, dismissing his contest against the homestead entry, No. 933, 
of Addie E. Gass, of the SE. J of Sec. 16, T. 28, R. 11, Alva land dis- 
trict, Oklahoma Territory. 

The ground of said decision is that the affidavit of contest was made 
before the contestant's attorney. 

At the hearing the defendant moved to quash the proceedings, on 
the ground that the affidavit of contest was not properly verified, it 
being sworn to before the contestant's attorney. The register and 
receiver overruled this motion, and the case was heard upon the testi- 
mony offered. The local officers found for the defendant. The con- 
testant appealed. Your office held that it was error in the local officers 
not to dismiss the contest on said motion of the defendant, saying: 

The affidavit was made before the contestant's attorney. The evidence was before 
yoa that such was the case at the time it was filed, as the affidavit and power of 
attorney were on one and the same sheet of paper, and it should not have been 
received by you. No notice should have been issued thereon. The Department has 
ruled that the affidavit of a party taken before his attorney as notary public, will 
not be accepted by the Department, 

And you cite the case of Werden r. Schlecht, 20 L. I)., 523, as autjiority 
for your decision. 

Upon further consideration of the question presented, the Depart- 
ment is led to the conclusion that the doctrine announced in the case of 
Werden r. Schlecht, cited by your office, is not sound, and the same 
will not be followed. 

In the case of William K. Sutley, 3 L. D., 248, it was held, after a 
thorough discussion of the subject, that the Code of Dakota, fairly con- 
strued, did not forbid an attorney to administer the necessary oath to 
a contest affidavit, and that the contest affidavit, which was executed 



J 



46 DECISIONS BELATINO TO THE PUBLIC LANDS. 

before the oonteetant's attorney, was not invalid, This decision was 
followed in the case of Hopkins r, Daniels, 4 L. D., 126. 

The laws of Oklahoma on the subject of affidavits and depositions are 
the same as those of Dakota, cited in the case of William B. Sntley, 
supra, and such laws not forbidding it the contest affidavit as made in 
this case will be accepted. 

The rule in such cases hereafter will be that in those States or Terri- 
tories whose laws do not forbid an attorney to administer an oath to a 
client, the necessary oath to a contest affidavit may be administered by 
an officer or notary who is also the attorney for the contestant; but in 
States where the local laws forbid such practice it will not be allowed. 
Section 13 of the circular of instructions issued December 15, 1885 (4 L. 
D., 297-9), is to that extent modified; and the case of Werden r. 
Schlecht, so far as in conflict with these views, is overruled. 

Your office having dismissed the contest without considering the case 
on its merits, the record is returned for such consideration, and in view 
of the delay caused by the proceedings already had you are requested to 
act upon the case as early as practicable. 



FooTE V. McMillan. 

Motion for review of departmental decision of March 7, 1896, 22 L. D., 
280, denied by Secretary Francis, January 18, 1897. 



COAL. T^AXr>— FINAr. PROOF— LIFE OF FILJXG. 

Skoyen v. Habbis. 

A coal land claimant who appears, on the last day of the life of his filing, at the local 
office and within the business hours designated by official regulations, and is 
prevented from submittiug his final proof and making payment at such time by 
the receiver's office being closed contrary to said regulations, should not be 
regarded as in default, where such proof and payment are tendered on the next 
business day. 

^Secretary Francis to the Commissioner of the General Land Office, Jan- 
(I. H. L.) nary 18, 1897. (E. B., Jr.) 

This is a contest under the coal land law — sections 2347 to 2352, 
inclusive, of the Revised Statutes. 

The record shows that John Harris filed his coal declaratory state- 
ment No. 992, March 23, 1893, for the SE. J of Sec. 16, T. 21 N., R. 7 E., 
Seattle, Washington, land district, alleging that he came into posses- 
sion thereof on the twentieth of the same month, and had located and 
opened a valuable mine of coal and expended $100 in labor and improve- 
ments thereon ; that on March 30, 1894, Peter O. Skoyen filed his coal 



DECISIONS RELATING TO THE PUBLIC LANDS. 47 

declaratory statement No. 1028, for the same land, alleging possession 
on and since March 21, 1894, and that he had located and opened a 
valuable mine of coal and expended $20.00 in labor and improvements 
thereon; that on May 21, 1894, Harris applied to purchase the land, 
and offered proof and tendered payment therefor; that on Jnly 7, 1894, 
after notice of Harris' application, proof and tender, Skoyen filed a pro- 
test against the same, on the ground that Harris' declaratory statement 

had fully expired by limitatioD of law before he tendered proof and i)nymeDt for 
said land,' more than fourteen months having int«rvene<l between the date of his 
alleged poaaeAsion and the date of his said proof; 

that a hearing was duly had in January following; that on April 2, 
1895, the local oifice decided that although the evidence showed ^Hhat 
Harris has expended about $2,000 in money and work upon this land 
and has acted in apparently good faith," yet by his failure to apply to 
enter and tender proof and payment therefor within one year and sixty 
days from the commencement of his possession and improvements he 
forfeited his right thereto '<as against an adverse claimant," and 
rejected his application to purchase, and, in effect, recommended the 
cancellation of his coal filing; that on appeal by Harris your office, on 
July 2, 1895, decided that Skoyen had failed to show that he had 
opened and improved a coal mine on the land, or that he was acting in 
good faith, that he did not therefore have a valid adverse claim to the 
land when Harris applied to purchase, that Harris, having otherwise 
complied with the law, might enter the land after one year and sixty 
days from the commencement of possession and improvements, in the 
absence of any valid adverse claim, that Skoyen's filing should be can- 
celed and Harris' final proof received, and he be allowed, upon i>ay- 
ment, to make entry of the land ; and that a motion by Skoyen for 
rehearing was denied by your office October 7, 1895. 

An appeal by Skoyen brings the case before the Department, error 
being assigned as follows: 

I. Error to decide that the proof of contestee's good faith is ample and entirely 
satisfactory. 

II. Error to decide that contestant has failed to show that he was acting in good 
faith. 

III. Error to decide that contestee's possession must be regarded as having com- 
menced upon March 20^ 1893, instead of aboat the middle of February, 1893, the time 
he states in his testimony that he came into possession. 

IV. Error to decide that Harris made tender of payment on May 21, 1894, or at any 
other time ; it app^viring that tender was not made by him, and that he had no money 
of his own or in his possession for such purpose. 

V. Error to decide that on said 21st day of May, 1894, when such tender is alleged 
to have been made, there was "uo valid adverse claim'' to the land appliedtfor 
by him. 

VI. Error to decide that said application of Harris to purchase said land to be 
allowed. 

Vn. Error to decide that the coal declaratory statement No. 1028 of protestant be 
canceled. 



48 DECISIONS RELATING TO THE PUBLIC LANDS. 

VIII. Error to decide that it is immaterial what contestant has done in the way 
of improvements upon said laud since the day when oontestee (Harris) tendered 
proof and payment therefor. 

IX. Error to refuse said petition for re-hearing. 

X. Error to decide that said petition for re-hearing alleged no sufficient grounds 
for a re-hearing. 

XI. Error not to decide — 

First : That said final proof and payment by Harris were not made in time. 

Second : That the possession of said Harris was commenced in February, 1893, and 
that proof and payment should have been tendered in April, 1894. 

Third. That the declarator v statement No. 1028 of contestant is a valid adverse 
claim to said land and that said coutestee had no right- thereto as against said 
adverse claim. 

Fourth : That the work done by the said Skoyen as a basis for said coal declara- 
tory statement filing was sufficient and that he was entitled to his full time of one 
year and sixty days after taking possession of said land in which to open and develop 
the coal deposits thereon aud to show his good faith in the premises, and that the 
amount of his improvements was not a material question in the hearing upon the 
right of Harris to euter said laud, it being true that his application to enter was 
made too late. 

Fifth: That said Skoyen has since and within the life of said filing made such 
improvements, aud that his good faith is thus demonstrated. 

Sixth : The application of Harris to enter said land should be denied and his coal 
declaratory statement No. 992 canceled, and that said land be awarded to Peter O. 
Skoyen under his coal declaratory statement No. 1028 and the final proof and pay- 
ment tendered thereon. 

Upon the questiou of Harris' good faith the evidence abandantly 
sustains the conclusions of your office and the local office. His pos- 
session and improvements have been continuous during all the period 
in controversy. He has opened and improved a valuable mine of coal, 
and expended $2,000 in money and improvements to that end on the 
land. At the hearing his good faith, except as alleged in the protest 
and hereinbefore indicated, was openly admitted by the protestaiit. 
Upon the contention of the appeal that Harris' "possession" com- 
menced "about the middle of February, 1893," instead of March 20, 
1893, it is sufficient to say that although the evidence shows that Har- 
ris commenced prospecting for coal on the land and did some work 
thereon and discovered coal during February, 1893, it does not show 
that he had possession of the land or went upon it to take possession 
as a claimant under the coal land law until, as alleged in his filing, on 
March 20, 1893. 

Under the coal land law, as contained In the sections of the Revised 
Statutes above indicated, a claimant seeking a preference right to 
purchase, and coming lawfully into possession of public coal land, is 
entitled, upon continued C/Ompliance therewith in good faith, to hold 
and possess the same as against any other party claiming under the 
same law, for the period of one year and sixty days " after the date of 
actual possession and commencement of improvements on the land" 
(sections 2349 and 2350, Revised Statutes). This period, in the case of 
Harris' filing, within which he might make entry of the land, expired 
on Saturday, May 19, 1894. 



DECISIONS EELATma TO THE PUBLIC LANDS. A9 

Harris testifies that by reason of an attack of rbeamatism during 
three days preceding the 19th, he was delayed in reaching the local 
office, and did not, therefore, arrive there antil about three o'clock 
P. M. of the 19th with his proof, and money to pay for the land, when 
he found the office closed. It appears from the register's statement 
that only the receiver's office was closed, that office closing regularly 
at cue o'clock P. M. on Saturday to enable the receiver to make depos- 
its of public money. The record, as already stated, shows that tender 
of proof and payment was made on Monday, March 21, following. 

There is no evidence to controvert the truth of Harris' testimony as 
to his previous sickness, and his presence at the land office on Saturday^ 
May 10, 1894, with his proof and money to pay for the laud. The reg- 
ister's statement corroborates Harris as to the receiver's office being 
then closed. Under the law as expressed in official regulation govern- 
ing his attendance, the receiver should have been there at the time 
Harris arrived, and thence on until four o'clock P. M. (General Cir- 
cular, p. 120.) The law gave Harris until that hour within which to 
comply with its requirements. Standing ready to comply within the 
time allowed, and being prevented from so doing only by the previous 
closing, contrary to law, of the receiver's office, his right should not 
thereby suffer any prejudice or impairment. Harris' tender of jv^oof 
and payment should be regarded in contemplation of law as duly made 
at the hour he alleges, and therefore within the specific statutory life 
of his claim. 

It is unnecessary in this view of the case to pass upon any other 
question sought to be raised by the appeal. 

The contest of Skoyen is dismissed, and your office decision of July 
2, 1895, as herein modified, affirmed. 

Harris will be allowed to duly complete his entry, subject, however, 
to any valid adverse claim of the State of Washington under its grant 
of school lands. 



SETTLEMENT RIGHT— SUCCESSFUI- CO^NTESTANT— RELINQUISHMENT. 

GouRLEY r. Countryman. 

While as between two parties claiming the same tract, the settlement right of one 
may not defeat the superior right of the other as a saccessfiil contestant, yet if 
tmch. contestant thereafter enters the land, and relinquishes the entry, such 
settlement right, if maintained, will defeat the subsequent entry of a third 
party. 

Secretary Francis to the Cammisaioner of the General Land Office, Jan- 
(I. H. L.) uary 18, 1897. (C. W. P.) 

This case involves the N. i of the NE. J of Sec. 28, T. 11 N., K. 3 W., 
Oklahoma land district, Oklahoma. 

The record shows that on May 11, 1889, A. G. Blauvelt made home- 
stead entry of the above described land; that on October 17, 1889 
William Gonrley contested said entry, on the ground that the entry- 
10671— VOL 24 4 



50 DECISIONS RELATING TO THE PUBLIC LANDS. 

nan had executed, for a valuable consideration, a relinquishment of 
Lis entry, and had asserted afterwards no claim to the laud ; that on 
September 30, 1890, Thomas W. Pence contested the entry of Blauvelt, 
charging abandonment and the relinquishment of his entry, and that 
the contest of Gourley was instituted when the relinquishment was in 
liis possession, and was speculative and intended to prevent others 
from securing any rights upon the land, until he could sell the relin- 
<iuishment, or hold the land until such time as suited him to make 
«ntry thereof; that on December 21, 1891, Gourley tiled the relinquish- 
meuC of Blauvelt and made homestead entry of the said land, together 
with the S. } of the said NE. ^. A hearing was had, the contest of 
Pence was dismissed. On appeal, your office sustained the action of 
the local officers. But upon a further appeal, the Department reversed 
your office decision. A motion for review of this decision was denied 
on December 24, 1894. See Pence v, Gourley, 18 L. D., 358; Id. on 
review, 19 L. D., 588. Your office, on January 17, 1895, canceled 
Gourley's entire entry. On February 14, 1895, Pence made homestead 
entry for the N. i of the NE. ^ of said section 28, and relinquished the 
same on July 26, 1895, and on the same day George W. Oountrymau 
was allowed to make homestead entry of the said K. ^ of the NE. ^, 
On October 15, 1895, Gourley filed an affidavit of contest against 
Oountryman^s entry, alleging settlement dating from November, 1889, 
and that he was a resident of the land at the date of Pence's relin- 
•quishment and Countryman's entry. On February 10, 1896, Gourley 
:filed an application for reinstatement of his homestead entry, alleging, 
in addition to the allegations in his contest affidavit, that Countryman 
knew of his settlement and residence when he made entry, and that 
«aid entry was made with the intent to defraud the petitioner of bis 
improvements. 

Your office, by decision of May 14, 1896, held that it was error to 
cancel Gourley's entire entry, and reinstated his entry as to the S. J of 
the NE. J, improi)erly canceled, but denied his application for rein- 
statement as to the N. ^ of said quarter t^^ection. 

On June 6, 1896, Gourley filed a motion for review of your office 
decision, and with said motion he filed an amendmentof his application 
for reinstatement, in which it is represented by him, under oath, that 
when he purchased the relinquishment of Blauvelt's entry he did so in 
good faith, with no intent of defrauding any one; that he was first 
awarded the laud by the register and receiver, and the Commissioner 
of the General Land Office, and that he felt that he had been greatly 
wronged and injured by the departmental decision reversing the action 
of your office and the local officers and holding that his contest against 
Blauvelt's entry was not in good faith ; that the entry made by Pence 
was with the intent and design of speculation, and that he never 
intended to submit final proof in support of said entry, and that he 

18 informed and believes he (cau) establish by proof that there was a conspiracy 
4>etween said Pence and said Countryman to hold said land by said entry so made by 



DECISIONS RELATING TO THE PUBLIC LANDS. 51 

eftch of tbem as aforesaid, for speculatiye pnrposes and for the purpose of availing 
themselves of the benefit of the amount of money, which said affiant has put into 
said tract involved; that each of said parties has known all the time of the claim of 
said affiant by virtne of having observed him in open, notorious, visible and adverse 
possession of said tract, exclusively occupying and cultivating the same. 

Upou this motion for review, your office on July 28, 1896, held as 
follows: 

Gonrley's contention that he was unjustly dealt with by the Department can not 
be considered by this office. The action of this office in such cases is subject to 
review by the Department, and this office is bound by the final judgment of the 
Department. Nor do I see any reason why office decision of May 14, 1896, should be 
disturbed on Gonrley's charge (that he) was a settler on the land. The Department 
held that Gourley had shown bad faith in his dealing with the government and 
declared that Gourley had acquired no right by his settlement and residence. 

It is true that Pence who secured the cancellation of Gourley^s entry has relin- 
quished his entry, but it is also true, as held in office decision of May 14, 1896, that 
before Gourley asked for a reinstatement of his entry. Countryman's rights acquired 
by virtue of his entry had attached. 

It does not appear to me that the charge in reference to Pence's bad faith, or fraud- 
ulent design in prosecuting his contest against Gourley's entry is a material one. 
Pence^s entry is not now the subject of attack. Whatever right was accorded him 
by virtue of his contest, has been waived and relinquished to the government. 

The fact that Countryman made entry for the land with the knowledge that Gour- 
ley had improvements on it, and had asserted ownership thereto, does not invalidate 
his entry. Gonrley's entry had been canceled as the result of a contest that had been 
prosecuted to a final judgment before the Department, and in that judgment it was 
held by the Department that Gourley acquired no right to the land by reason of his 
improvements and ''continuous residence." The land, after Pence's entry was oan- 
eeled by relinquishment, became a part of the public domain, subject to appropria- 
tion by entry, and it was not unlawful for Countryman to enter the same even 
though he knew of the improvements made by Goorley and his residence on the 
land; 

and denied the motion for review. 

Gourley appeals to the Department. 

While I concur in that part of your office decision which holds that 
the decisions of the Department of April 5, 1894, and December 24, 
1894, are final, as to all matters that preceded the entry of Pence by 
virtae of his preference right, as contestant, and think that Oourley's 
application for reinstatement of his entry was properly denied, I can 
not agree with you that Gourley could acquire no rights by virtue of 
settlement and continuous residence upon the land, after the cancella- 
tion of Pence's entry. 

In the case of Pence v, Gourley the Department did not decide that 
Gk>arley could not acquire a right to the land as against a third party 
by bis settlement and residence upon the land, but simply as against 
the contestant Pence. When Pence relinquished his entry, the land 
was restored to the public domain, and if Gourley was then residing on 
the land, his settlement right would attach eo instanti upon the filing 
of Pence's relinquishment, and could not be defeated by Country- 
man's entry. (Rickers v. Fisher, 19 L. D., 421.) I therefore think a 
hearing' should be had on Gourley's affidavit of contest, as amended by 
his affidavit filed June 0, 1896, and direct that a hearing be had for the 



52 DECISIONS RELATING TO THE PUBLIC LANDS. 

purpose of deterniiniDg the rights of the parties, which will be eonfiued 
to the question of Gourley's residence nppn the land at the time of 
Pence's relinquishment and his allegation that there was a conspiracy 
between Pence and Countryman to hold the land by the entries made 
by each of them, respectively, for speculative purposes and for the 
purpose of availing themselves of the benefit of his improvements upon 
the land, both parties knowing him to be in possession of the land, 
actively occupying and cultivating it. 

Your office decisions of May 14, 1806, and July 28, 1890, are modified 
accordingly. 



ORDER or CAXCEt-LATION-RESFDENCE. 

United States v. Montoya et al. 

The cancellation of an entry without notice to the entry man is void for wantof jnria- 
diction. 

A homestead entry will not be defeated by the fact that the entryman, through mis- 
take, builds his house outside the lines of his land, where in good faith he resides 
in the house so located. 

Secretary Francis to the Commissioner of the General Land Office, Jan- 
(I. H. L.) uary 30, 1897, (E. B., Jr.) 

This is an appeal by Juan de los Reyes Martinez from your office 
decision of November 9, 1895, in the case of the United States v. Deci- 
derio Montoya and others by which the final homestead entry, No. GSoy 
made by Montoya September 18, 1892, for the W. J of the NE. J 
and the E. J of the NW. i of section 20, T. 24 N., R. 32 E., now in 
the Clayton, formerly in the Santa Fe, New Mexico, land district, 
was reinstated and the pre-emption declaratory statement No. 84, 
filed May 28, 1890, by said Martinez, for the same tract, was held for 
cancellation. 

It appears that said final entry was canceled by your office February 
3, 1886| without notice to the entryman, or his transferees, on the 
ground that, as reported by a special agent, <' Montoya never lived on 
the land embraced in his entry ,^' and '^ the county records show that 
Montoya conveyed the land to S. W. Dorsey October 31, 1882, who con- 
veyed the same to the Palo Blanco Cattle Co. March 7, 1884 ;" that at 
the instance of said Dorsey, and after a report September 3, 1892, by 
another special agent, showing due residence, improvements and com- 
pliance otherwise with the homestead law by Montoya, and recom- 
mending the reinstatement of the entry, your office, on September 29th 
following, ordered a hearing "in order to determine the rights of the 
parties to the land involved j " that the hearing was duly held, at which 
the government, Martinez and the transferees were duly represented, 
Martinez having filed, on the second day of tbo hearing, an affidavit 
charging failure to reside on the land on the part of Montoya; and 



DECISIONS RELATING TO THE PUBLIC LANDS. 55 

that "from the testimony presented" the local oflBce foand briefly, 
*'that the land embraced in said homestead entry has not been resided 
upon by Deciderio Montoya as required by law," and recommended 
that his entry "should be canceled." 

The appeal is largely made up of assignments of error relative to the 
consideration by your oflice of "the report of the special agent" and 
to the status giveu Martinez in the case. It is unnecessary to consider 
them at any length. Martinez appears to have been accorded all the 
rights of a contestant at the hearing, among which were those of cross- 
examining witnesses and objecting to testimony, and "the report of the 
special agent" (which evidently has reference to the second such report 
mentioned above) was only preliminary to the hearing, and is only 
referred to in that connection in said decision. The remaining assign- 
ments of error are as follows: 

Fifth. In faiUng to bold that the decision of the local officers was binding. 

Sixth. In failing to hold that the cancellation of the homestead entry in October, 
1885, and all the accompanying proceedings were, at least, j^^'^^^ faciCf valid; and 
mnst stand as the valid act of a government official until the illegality of the 
proceedings be shown. 

Seventh. In reinstating the homestead entry. 

Eighth. In holding for cancellation the D. S. filing, and 

Ninth. Because of other errors both of law and fact appearing upon the face of 
the record. 

The cancellation of this entry without notice to the entryman was 
void for want of jurisdiction (Drew v> Comisky, 22 L. D., 174, and Cas- 
telle V, Bonnie, 23 L. D., 162) : so that the cancellation was a nullity, 
and in law the entry was intact as though the order of cancellation had 
not been made when Martinez's declaratory statement was filed. Such 
filing therefore, equitable title having vested in Montoya, gave Martinez 
no right whatever to the land. 

The testimony taken at the hearing shows that, of the five years 
immediately preceding his final entry, Montoya had resided upon the 
land in a log house thereon until about 1881, when he moved into a 
stone house just built by him about two hundred yards south of the 
log house, and which (stone house), as was afterwards ascertained, 
had been located, apparently by reason of mistake as to the south 
boundary line of the tract above described, upon the NW. J of the 
SE. J of the said section. In this house he lived until after he made 
his final entry for the said tract. It does not appear that he was aware^ 
at any time prior to final entry, that the stone house was not actually 
on his own land. It is well settled that residence in good faith in a 
house built by an entryman by mistake outside the lines of his land 
will not defeat his entry (Talkington's Heirs v. Hempfling, 2 L. D., 46; 
and Smith v. Brearly, 9 L. D., 175). 

The Department would doubtless be justified, in view of the evi- 
dence and all the circumstances of this case, in holding that this entry 
is confirmed by the seventh section of the act of March 3, 1891 (26 



54 DECISIONS RELATING TO THE PUBLIC LANDS. 

Stats., 1095), on the ground that there was no claim adverse thereto 
prior to final entry, and that after such entry and prior to March 1, 
1888, it had been sold to a bona fide purchaser for a valuable consider- 
ation. No question has been raised at any time by appellant as to the 
bona fides of the alleged sales. In view, however, of the facts that the 
evidence established the good faith of the entryman as to residence 
and shows compliance otherwise with the homestead law, and that no 
record evidence of these sales appears among the papers in the case, 
only parol evidence appearing on that point, the Department does not 
deem it necessary to pass upon the question of confirmation of the 
entry under said section. . 

Your said decision is affirmed. Montoya's entry will be reinstated^ 
and passed to patent. Martinez's filing will be canceled. 



SCHOOL LAXI>— i:5rDEMXrrY SELECTION— SURVEY. 

State of California r. Wright. 

The date of the survey of a township is not fixed by the date of the work in the fields 

but by the approval of the plat. 
An alleged loss in an nnsurveyed township will not authorize a school indemnity 

selection. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(1. H. L.) uary 30^ 1897. (0. J. W.) 

On July 8, 1895, M. J. Wright, as locating agent for the State of 
Caliibruia, made application for, and selected, the E. ^ of the XE. ^ of 
Sec. 20, T. II S., H. 9 E., Mount Diablo meridian, as indemnity for deficit 
in school land, viz : the NW. J of the NW. J of Sec. 36, T. 9 K ., R. 22 W., 
forty acres; the SW. J of the NW. J of Sec. 36, T. 9 N., R. 22 W., 38.78 
acres, and Sec. 36, T. 1 N., R. 16 E., 1.22 acres — eighty acres. 

On December 21, 1895, by letter ("K"), your office held said selection 
for cancellation as invalid, because the x>lat of township 9 north, range 
22 west, S. B. M., on file in your office, showed that the only portion of 
the township surveyed was section 24. 

On March 24, 1896, by letter ("K"), your office acknowledged receipt 
of evidence showing service of notice of letter "K" of December 21^ 
1895, upon the surveyor general of California, and his failure to appeal 
from the decision holding selection for canceUation; whereupon the 
cancellation was ordered. The local officers were directed to note the 
cancellation on the records of their office and to advise the surveyor 
general. They were also directed to give notice to W. W. Wright of 
this action, and to advise him that his application to have a portion of 
section 20, township 11 south, range 9 east, M. D. M., reserved and held 
for him, for the purpose of a reservoir and dam which he wished to con- 
struct, would be made ttie subject of a separate letter. 



DECISIONS EELATING TO THE PUBLIC LANDS 55 

On June 12, 1896, by letter "G" of that date, referring to office let- 
ters "K" of December 21, 1895, and March 24, 1896, in wliich school 
indemnity selection R. & 11. No. 216 (State No. 2934) was canceled, your 
office instructed the local officers, as follows : 

I now advise yoa that the action abo ve set ont is revoked because it wan foanded 
upon a misapprehension of facts and c onsequently was erroneous. The said applica- 
tion is therefore reinstated. Yon will note such reinstatement upon the records of 
yonr office, referring to this letter, and notify the State surveyor general of Califor- 
nia accordingly. And give notice of this action also to W. W. Wright, who filed ia 
yonr office a protest against the said selection on November 2, 1895. The misappre* 
hension above mentioned was caused or at least contributed to by the 17. S. surveyor 
general for California, who furnished Mr. Wright with a certificate to the eft'ect that 
the only surveyed land in the township was section 24, while, as a matter of fact, the 
whole township was surveyed, and a portion of school section 36 therein returned 
aa mineral in character. 

After the cancellation of the selection and before its reinstatement^ 
the surveyor general of the State of California made application for 
its reinstatement, and on April 21, 1896, yonr office, in passing upon 
the same, said in reference to the cancellation formerly ordered: ^^A» 
I can see no reason for doubting the propriety of this action, I must 
decline to revoke it, and to reinstate the selection upon the records.'^ 
Afterwards, in the letter of June 12, 1896, your office, of its own motion^ 
as for the correction of a mistake in fact, reinstated the State's canceled 
application. 

On November 2, 1895, W. W. Wright filed application to have th& 
E. i of the NE. J of Sec. 20 reserved for his use for reservoir and rights 
of way, under the act of March 3, 1891 (26 Stat., 1095), and appended 
to said application is the certificate of W. S. Green, U. S. surveyor gen- 
eral for California, in which it is stated that the plat of township 9 north^ 
range 22 west, S. B. M., on file in his office, approved by Theo. Wagner^ 
U. S. surveyor general, December 12, 1879, shows the only portion of 
said township surveyed to be section 24, and that a copy of said plat 
was duly filed in the United States land office at Los Angeles, January 
19, 1880. 

On November 16, 1896, your office forwarded a map and papers filed 
in the Stockton, California, land office, by W. W. Wright, in whicb 
yoa recommend that the map be considered in connection with this 
case, and be approved subject to all valid subsisting rights, with or 
without exception, as to the E. ^ of the N E. ^ of Sec. 20, so as to har- 
monize with the disposition to be made of said laml. 

W. W. Wright has appealed from your office decision of June 12^ 
1896, reinstating the said school indemnity selection, which was can- 
celed March 24, 1896. 

The errors specified are: 

1. In failing to adhere to and sustain the decision of December 21^ 
1895, which held that there was no valid basis for said indemnity selec- 
tion at the date when it was filed, and held the same for cancellation. 



56 DECISIONS RELATING TO THE PUBLIC LANDS. 

2. Due uotice of said decision of December 21, 1895, having been 
given to the proper officer of the State of California, and no appeal 
having been taken from said decision, the same became final, and said 
indemnity selection was duly canceled by office letter "K" March 24, 
1896, and it should not be disturbed. 

3. After said final action of March 24, 1896, had been taken, an appli- 
cation to reinstate the selection was made by the surveyor general for 
the State of California, which, on April 21, 1896, was refused, and 
should have been final. 

4. Error in undertaking to reinstate said selection upon the ex-parte 
application of the attorney here for the State of California, improi>erly 
made, and filed without any notice thereof to applicant Wright. 

5. Error not to deny action on such application until due notice was 
given to Wright. 

6. It was error, after having, on June 1, 1896, recognized Wright as 
an applicant for reservoir rights on the land, to reinstate the selection 
without considering his intervening rights. 

7. In not holding that said alleged basis, T. 9 K., R. 22 W., was not 
surveyed until the official township plat and field notes thereof had 
been duly approved by the United States surveyor general on January 
8, 1896. 

The last proposition announced, if found to be true, would control 
the case, and render unnecessary the consideration of the minor grounds 
of error. 

Your office allowed the State's selection in the first instance on an 
apparent state of facts, which entitled it to such selection. Afterwards, 
your office canceled the selection, on the ground that the facts were not 
as alleged, and that no proper basis for the selection exist-ed; subse- 
quently, your office reached the conclusion that a mistake was made in 
the facts, which demanded the reinstatement of said canceled selection, 
and thereupon ordered its reinstatement. 

In office letter "K" of December 21, 1895, it is stated that the plat 
of township 9 north, range 22 west, S. B. M., on file in your office, shows 
the only jwrtion of the township surveyed to be section 24. This was 
the reason for holding the application for cancellation. In your office 
letter <'G" of June 12, 1896, it is stated: '^I now advise you that the 
action above set out is revoked, because it was founded upon a misap- 
prehension of facts, and consequently was erroneous." The application 
was for this reason reinstated. 

The township map referred to has been examined. The surveys 
included in it run through a series of several years, the actual surveys in 
the field closing January 2, 1894, thus antedating the application of the 
State to make the selection in question. The plat, however, was not 
approved by the surveyor general of the United States for California 
and filed in office until January 8, 1896, which is after the filing of 
Wright's application to have the land reserved for reservoir purposes. 



DECISIONS RELATING TO THE PUBLIC LANDS. 57 

this application having been filed November 2, 1895. The fact to which 
Tour office refers, as having been misapprehended, is not i)urely a ques- 
tion of fact, but one of mixed law and fact. 

The actual survey of the township in question had been made at the 
time the State filed application to make indemnity selection, but the 
survey had not been, approved and the map filed, so the question 
remains: Was the township surveyed at the time the State's applica- 
tion was filed. The basis of the selection is the mineral character of a 
part of section 36 of said township. In the case of Pereira r. Jacks 
(15 L- D., 273), it is held, that if land is shown to be mineral in character 
by return of the surveyor-general at completion of the survey, it is 
excepted from the school grant to California. In the case of Niven v. 
State of California (6 L. D., 439), it is held that the grant to the State 
takes effect as of the date of the survey. 

In the cases cited it is clearly indicated that the date of a survey is 
fixed not by the date of the work in the field, but by the approval 
and filing of the map. In the case of Southern Pacific Bailroad Com- 
pany r. Burlingame (5 L. D., 416), it is held that the date of a survey is 
determined by the date of its approval. This ruling is not only well 
founded, but has been very uniformly followed by the Department, 
which is in accord with the ruling of the courts. 

The supreme court of California, in the case of Michael Finney v. 
James N. Berger (50 Cal., 249), say: 

The statates of this State do not cod template a sale of the sixteeDth and thirty- 
sixth sections antil the title to the same has vested in the State, and the title to said 
sections does not vest in the State nntil the plat of the snrvey is approved by the 
United States surveyor general. 

In the case of Medley r. Robertson et al, (55 Cal., 396), the court hold : 

The title to a particular sixteenth or thirty-sixth section does not vest in the State 
before the plat of the snrvey of the township has been approved by the United 
States surveyor general ; and an application to purchase such land made before the 
approval of the snrvey is unauthorized and void. 

The application of the State, as was first held by your office, showed 
no proper basis for the selection applied for, for the reason that the 
township in which the alleged deficit existed was unsurveyed, and such 
application was unauthorized and void, and the selection under it was 
properly canceled. It would seem to follow that its reinstatement was 
erroneous. 

Your office decision of June 12, 1896, is accordingly reversed, and 
selection E. & E. Xo. 216, State Ko. 2934, is canceled; the map filed by 
W. W. Wright is in accordance with your recommendation approved. 



58 DECISIONS RELATING TO THE PUBLIC LANDS. 

CONFmMATION— SOLDrERS' ^VDDITIONAL HOXESTEAI). 

David Walters. 

The confirmation of a soldier's additional homestead entry nnder section 7, act of 
March 3, 1891, is not defeated by the failure of the register tx> issue the formal 
final certificate, where it appears from the record that the soldier complied 
with all the requirements of the law and regulations thereunder. 

The departmental decision herein of August 3, 1892, 15 L. D., 136 revoked. 

Secretary Francis to the Commiiss loner of the General Land Office^ Jan- 
(I. H. L.) uary 30, 1897. (W. A. E.) 

The Department is in receipt of your office letter of September 24, 
1896, asking for instructions relative to the soldier's additional home- 
stead entry of David Walters, made July 1, 1875, for the N. J of the 
STB. i of Sec. 29, T. 28 N., R. C E., Susanville, California, land districts 

It appears that your office suspended said entry, for reasons not 
necessary to set out here, and called for additional affidavits; that the 
Sierra Lumber Company, claiming to be the transferee of Walters, 
applied to have said entry confirmed under the act of March 3, 1891, or 
to purchase the land under section 2 of the act of June 15, 1880; that 
your office denied this application, and held the entry for cancellation, 
the reason assigned for the ruling that said entry had not become con- 
firmed under the act of March 3, 1891, being that no final certificate 
had issued on said entry; that on appeal to the Department your office 
decision was affirmed, in so far as it refused to hold said entry con- 
firmed, but the company was awarded the right to purchase the land 
under the act of June 15, 1880 (see 15 L. D., 136). 

The company having failed to perfect the entry as authorized by said 
departmental decision, instructions are now asked as to what action 
shall be taken in regard to said entry, in view of the recent decision of 
the Department in the case of the Sierra Lumber Company (22 L. D., 
690), wherein it was held that a soldier's additional homestead entry, 
similar to this, and upon which, as stated by your office, no ** final cer- 
tificate" had issued, was confirmed under the seventh section of the act 
of March 3, 1891. 

The original holding of the Department in this case, that Walters's 
said additional entry was not confirmed under the act of March 3, 1H91, 
was based upon the ruling in the case of the United States v. Bush (13 
L. D., 529). The Bush case, however, involved a cash entry made nnder 
the act of May 28, 1880 (21 Stat., 143), for Osage Indian lands. This 
act provided that actual settlers on tlie Osage Indian trust and dimin- 
ished reserve lands in Kansas might, within a certain fixed time, make 
l^roof of their claims, and pay one fourth of the purchase price, the 
balance of the purchase price to be paid in three equal annual install- 
ments thereafter. It was held in the case cited that an entry of Osage 



DECISIONS RELATING TO THE PUBLIC LANDS, 59 

land is not confirmed under the proviso to section 7 of the act of March 
3, 1801, until two years have elapsed from date 6f final payment, as 
** final certificate " is not issued until all the payments have been made. 

Afterwards, in the case of William R. Sisemore (18 L. D., 4-11), the 
Bash case was overruled, and it was held that when a claimant for 
Osage land under the act of May 28, 1880, submits proof of his qualifi- 
cations to enter, shows due compliance with law^ and makes his first 
payment for the laud, his right thereto is a vested interest, subject to 
the lien of the government for the unpaid purchase money; and the 
receipt then issued to him is a <^ final receipt" that entitles a subsequent 
purchaser of the land to the benefit of the confirmatory provisions of 
section 7, act of March 3, 1891, if otherwise within the terms of said 
section. 

Clearly, these rulings in regard to entries for Osage lan<ls have no 
direct bearing upon the question of confirmation of soldiers^ additional 
homestead entries. There are no annual payments, no final proof, to 
be made on the latter. All that is required of the soldier is that at the 
time he makes his application for an additional entry, he shall file, in 
addition to the regular homestead affidavits, special affidavits showing 
his identity as the soldier he represents himself to be, his military serv- 
ice, the description of his original entry, his compliance with law in 
regard to said original entry, and his unimpaired right to make addi- 
tional entry. He then pays the fees and commissions prescribed by 
law, and the receiver's receipt and the register's certificate are issu(»d. 
<^ Final certificate" should also be issued at the same time (General 
Circular of 1895, page 29). 

The difi^erence between an Osage entry and a soldier's additional 
entry is thus very apparent, and the question as to what is sufficient to 
bring the latter within the confirmatory provisions of the act of March 
3, 1891, is entirely distinct from the question involved in the Bush ai d 
Sisemore cases. 

The seventh section of the act of March 3, 1891, provides that: 

All entries made nnder the pre-emption, homestead, desert land, or timber culture 
laws, In which final proof and payment may have been made and certificates issuc:^ 
and to which there is no adverse claim originating prior to final entry, and which 
have been sold or incumbered prior to the Hrst day of March, eighteen hundred and 
eighty, and after final entry to bona fide purchasers, or incumbrancers, for a valu- 
able consideration, shall, unless upon an investigation of a government agent, fraud 
on the part of the purchaser has been found, be confirmed and patented. 

As said above, no final proof is required on a soldier's additional 
homestead entry, and the soldier is supposed to do, at the time of making 
entry, all that the law requires of him in the matter of fih'ng the proper 
affidavits and paying the prescribed fees and commissions. 

When the record shows, as it does in the present case and the Sierra 
Lumber Company case, that the soklier has complied with all the 
requirements, will the failure of the register to issue formal final certifi- 
cate defeat confirmation under the act of March 3, 1891 ? It was held 



60 DECISIONS EELATING TO THE PUBLIC LANDS. 

in the Sierra Lumber Company case that it would not, and this ruling 
seems to be in accordance with law and equity. 

It is a well established rule of the Department that rights of parties 
are not impaired through the negligence of the local officers. 

As the present case (which has not yet been closed) is identical in all 
essential particulars with the Sierra Lumber Company case, and as the 
former holding of the Department that Walters's said additional entry 
was not confirmed under the act of March 3, 1891, was erroneously 
based upon the ruling in the Bush case, the former action of the Depart- 
ment herein is revoked and set aside, and the entry will be passed to 
patent. 

It is not intended by this ruling to change the procedure heretofore 
followed in regard to soldiers' additional homestead entries. In other 
words, you will still require the receiver to issue " final receipt," and 
the register to issue "final certificate," in accordance with the circular 
instructions. This ruling merely protects the entrjrman against the 
consequences of neglect on the part of the local officers. 



HOMESTEAD - PRE-EMPTIOX— ALIJ^NAGE. 

BtJTLEB V. Davis. 

A pre-emption filing, or application to make homestead entry, made by an alien prior 
to declaration of intention to become a citizen, confers no right either under the 
pre-emption or bomestead law, and a settler occupying snch status is without 
protection as against an intervening adverse claim of record. 

Secretary Francis to the Commissioner of the Oeneral Land Office^ Jan- 
(I. H. L.) uary 30, 18'J7. (A. B.) 

On June 17, 1886, James J. Butler filed a pre-emption declaratory 
statement of his Intention to purchase the W. J of the SW. J, Sec. 28, 
and the S. ^ of the SE. i, Sec. 29, T. 4 N., R. 24 W., S. B. M., Los Angeles, 
Califoruia. On December 11, 1891, Butler applied to make homestead 
entry of the same land; his application was rejected because he failed 
to show that he was a citizen, or had declared his intention to become 
such. On February 12, 1892, Butler declared his intention to become a 
citizen, but did not make new application to enter the land, nor ofler to 
make proof on his preemption filing. 

On February 9, 1894, Silas R. Davis made homestead entry for the 
land. 

On February 17, 1894, Batter's naturalization being completed, he 
applied to make homestead entry of the land, and his application was 
rejected, because covered by Davis's entry. 

On March 4, 1894, Butler filed a contest against Davis's entry, alleg* 
ing that Davis had full knowledge of Butler's residence and improve- 
ments when he made his entry. 



DECISIONS RELATING TO THE PUBLIC LANDS. 61 

After a hearing the local office recommeuded that the entry of Davis 
be canceled. 

On appeal, your office, on August 21, 1895, held that tlie declaration 
of intention made by Butler to become a citizen 

eoald not relate back to the filing of his pre-emption declaratory statement, and thas 
benejt him; and his settlement and declaratory statement could not become opera- 
tive fkt>m its date, because the pre-emption law had been repealed prior thereto. 
While it is true that defendant knew of the residence, improvement and claim of 
plaintiff at the time he made his entry, yet the plaintiflTs failure to properly assert 
his claim in time is in no manner due to any act of the defendant. 

Your office then decreed that the contest of Butler be dismissed and 
the entry held intact. 

From this Butler has appealed to the Department. 

^o argument accompanies the appeal, and the appellant does not 
show specifically wherein your holding was contrary to law. 

The case has, however, been carefully considered. While the loss of 
his home is a misfortune to the appellant, this Department is without 
authority under the law to protect him in the face of the intervening 
adverse claim of record, which claim was initiated in accordance with 
law. The homestead entry of Davis was made at a time when the land 
was subject to entry. 

Butler was not a citizen and had not declared his intention to become 
a citizen at the time of making his pre-emption filing in 1886, or when 
be first applied to make homestead entry in 1891. 

Said filing and application were therefore without any force or valid- 
ity whatever and he could acquire no right thereunder. Before he 
applied as a qualified claimant to make homestead entry of the tract it 
had been entered by Davis, whose entry is protected by the law, pro- 
vided he complies with its requirements in the matter of settlement, 
residence and cultivation. 

Tour office decision must be and it is therefore affirmed. 



SECOND CONTEST OKLAHOMA LAN1>S. 

Glabk V. Benfbo BT AL. 

In a contest between applicants for land in Oklahoma, involving priority of settle- 
ment; the question of ''soonerism'' is necessarily raised as to each party thereto, 
whether formally charged or not, and where, in such a contest, evidence is sub- 
mitted on said question, and a decision rendered thereon, a second contest should 
not be allowed on that question. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 30^ 1897. (J. L. McO.) 

On May 25j 1889, William T. Renfro made homestead entry for lots 
6, 8, 9, and 10, of Sec. 31, T. 12 N., R. 2 W., Oklahoma City land dis- 
trict, O. T. 



62 DECISIONS RELATING TO THE PUBLIC LANDS. 

On June 14, 1889^ Daniel Page, Jr., initiated contest against Renfro^s 
entry, alleging prior settlement 

The local officers found that Benfro was tlie prior settler. Your 
office, on January 23, 1892, sustained the local officers, and dismissed 
the contest. 

Ten days later— to wit, on February 2, 1892— Will H. Clark filed an 
application to contest Eenfro's entry. Ko action was taken thereon 
except to note the date of filiug. 

On April 3, 1893, Clark filed an amended affidavit, in which he 
charged upon information and belief, that Page's claim and contest 
were fraudulent, illegal and void, for the reason that he went into the 
territory during the prohibited period. His charges were corroborated 
merely upon information and belief. This amended complaint was not 
acted upon by the local office. 

Page in due time api>ealed from your office decision of January 23, 
1892; and on December 5, 1894, the Department reversed said decision, 
held that Page had a prior adverse claim, and directed that Beufro's 
entry should he canceled upon the completion of entry by Page. 

Benfro filed a motion for review of said departmental decision ; but 
said motion was denied, and the decision of December 5, 1894, re-affirmed 
on September 12, 1895 (314 L. and E., 314). 

On April 10, 1896, Clark renewed his charges against Page, in a 
"supplemental and amended affidavit of contest," in which he alleged 
that Page's homestead entry was illegal, for the reason that at the time 
it was allowed he (Clark) had a contest pending, which charged that 
Page had occupied a portion of the land described in the President's 
proclamation of March 23, 1889, during the prohibited i>eriod; therefore 
Clark asked a hearing. 

Your office on August 19, 1896, denied a hearing, holding: 

Inasmach as Renfro's entry has been canceled, Clark's application to contest the 
same is hereby dismissed. 

The matter of Page's entering upon the territory during the prohibited period has 
been adjudicated; therefore Clark's application to contest Page's entry is dismissed. 

The above language has reference to the fact that, on the trial of the 
case of Page r. Eenlro, Page, on cross-examination by counsel for Ben- 
fro, acknowledged that he passed through the territory in the night, 
on a railroad train, two or three days (or nights) before the land was 
opened to settlement. 

Clark has appealed from said decision on the following grounds : 

First. The Honorable Commissioner erred in holding and finding that the question 
of defendant Page's qualifications was res judicata^ for the reason that the qualifica> 
tions of Page as charged in this affidavit of contest were never adjudicated except 
upon the statements of the said Page, no disqualification ever having been charged 
against him or evidence introduced against him in the trial of the case of Page v. 
Ren fro, the sole issue in that case l>eing prior settlement. 

Second. The Honorable Commissioner erred in holding and finding that the 
decision of the government or any officer thereof upon an ex parte showing is an 



DECISIONS RELATING TO THE PUBLIC LANDS. 63 

a4ju^<^^i<^i^ bindiug upon claimants not parties to that suit, uuless the charge of 
disqaalification was formerly made by way of contest^ and evidence introduced 
thefetmder. 

The departmental decision of September 12, 1895 (on review), 
explained how the question of Page's premature entry into the Terri- 
tory arose: 

A motion (for review) has been filed on behalf of Renfro, the only ground of 
error in which that was not considered in the previons decision is the Grst, namely : 
"in not considering the testimony of the contestant, Daniel Page, Jr. (see pag6 37 
of the record, question 2), in that contestant admits that he crossed the corner of 
Oklahoma Territory in travelling from Purcell to the Pottawatomie country, April 
18,1889." 

A farther examination has been maile of the testimony upon this point, and it is 
found, as alleged, that Page admits that, on April 18, 1889, he crossed from the 
Chickasaw country at Purcell, passing through Oklahoma Territory 1o the Potta- 
watomie country. The distance across the Oklahoma Territory at this point to the 
Pottawatomie country is about five miles. After reaching the Pottawatomie country 
he apx>ears to have followed the Pottawatomie line, travelling north until about 
opposite the land in question, being a distance of about thirty-iivo miles. It was 
from this point in the Pottawatomie country that he made his run to the land in 
question. 

I am of the opinion that the fact of his having crossed the Territory from Purcell 
to the Pottawatomie country after which he traveled about thirty*iive miles north 
within the Pottawatomie country to the point from which he made his run on April 
22, did not disqualify him. He certainly gained no advantage by reason of knowl- 
edge of the country acquired in crossing f^om Purcell to the Pottawatomie country ; 
and while he may be within the strict letter of the law, having entered the country 
after the President's proclamation and prior to the day set for the opening, yet under 
the pecnllar circumstances, I do not think he transgressed the spirit of the law, and 
ahoald not be held to be disqualified thereby. 

It will be seen that the question of Page's disqualification upon the 
allegation of premature entry has been adjudicated; but the applicant 
herein contends that such adjudication is not ^'binding upon claimants 
not parties to that suit, unless the charge of disqualification was 
formally mude by way of contest." 

The case (between Page and Renfro) arose upon Page's allegation of 
priority of settlement. Before either of them could be permitted to 
make entry, he must take the following oath (see General Circular, 
page 239) : 

I, , of , applying to enter a homestead, do solemnly swear that 

I did not enter upon and occupy any portion of the lands described and declared 
open to entry in the President's proclamation dated March 23, 1889, prior to 12 
o'clock, noon, of March 22, 1889. 

When the hesuring was ordered to determine whether Page or Renfro 
was the prior settler, the question as to whether either of them could 
take that oath (without which he could not be a legal settler) was 
necessarily involved — ^whether " formally " raised or not. It was raised ; 
testimony l:>earing upon that point was taken ; and the question has 
been adjudicated by the Department. The case at bar, in my opinion, 



64 DECISIONS RELATING TO THE PUBLIC LANDS. 

comes within the rule that an issue once tried and determined wiU not 
be made the i8sue of a second contest (Gurtin et al. v. Morton, 22 L. D., 
91). And this role is applicable to contestants, claiming a prior right 
to lands, as was held in the case of McEvers r. Johnson, 23 L. D., 472. 
The decision of your office denying a hearing is affirmed. 



SMfTH ET AL. P. TAYLOE, 

Motion for review of departmental decision of November 12, 1896, 
23 L. D., 440, denied by Secretary Francis, January 30, 1897. 



RAILROAD L.ANI>»-R1SIMBURSI:M£KT~ACT OF MARCH 3, 1887. 

Joseph Pretzel. 

The right to reimbarsement under the act of March 3, 1887^ cannot be recognized if 
the title conveyed by the government is paramount to the claim of the railroad 
company. 

Secretary Francis to tlie Commissioner of the General Land Office^ Jan- 
(L H. L.) uary 30^ 1897. (P. J. C.) 

This is an application for reimbursement under the act of March 3^ 
1887, 24 Stat., 550 (5 L. D., 627), made by Joseph Pretzel. The gov- 
ernment issued its patent to him, August 20, 1881, for the E. ^ of the 
NW. J, Sec. 27, Tp. 3 N., E. 1 B., 6th P. M., Beatrice, Nebraska. 

He alleges that the tract was embraced in the grant to the State of 
Kansas for the use of the St. Joseph and Denver City Kailroad Com- 
pany, by act of July 23, 1866 (14 Stat, 210); that the Kansas and 
Nebraska Railway Company of Kansas, the transferee of the grant, by 
its trustees, on November 15, 1881, conveyed the tract to one W. Prin- 
gle Mitchell ; that, in order to remove the cloud from his title, he did, 
on June 7, 1883, pay to Mitchell, <^who claimed prior and paramount 
title to said land" by virtue of his deed aforesaid, the sum of eighty 
dollars, and received a quitclaim deed from Mitchell for the land; 
<*that he has not been sued and subjected to any judgment, but that 
he paid the sum demanded of him," and believes he ought to be reim- 
burseil under said act of March 3, 1887. 

It appears that your office, by letter of May 16, 1895, addressed to 
an attorney in Nebraska, in relation to <^the claims of Franz Bothe- 
mier and Joseph Pretzel for reimbursement," stated, 

that the title held by said parties from the railroad company is paramonot to the 
title given by the goremment, as the land had passed to the railroad company prior 
to the date of the patents issned to Rothemier and Pretzel. 

Your office required some additional evidence to show no transfer or 
incumbrance of their title under government patents. This additional 
evidence was also required by letter of July 25, to the Nebraska attor* 
ney, also of August 22, 1895, to local attorneys. 



DECISIONS RELATING TO THE PUBLIC LANDS. 65 

By letter of December 19, 1895, in passiDg upon the Pretzel claim, it 
was said : 

I have to inform you that upon a re-investigation of the evidence and facts in the 
case, I fail to find that there has ever been a similar case presented and acted upon 
by this office, in which a decree of court was rendered on account of priority of the 
railroad grant. 

The records of this office show that on March 7, 1870, Gerhard Busch made home- 
stead entry No. 3914, for the E. i of NW. i and NW. i of NW. i. Sec. 27, Tp. 3 N., 
R. 1 E., canceled for abandonment April 5, 1872. 

The rights of the St. Joe and Denver City Railroad Company did not attach until 
March 28, 1870, and as this land was segregated by virtue of prior homestead entry 
No. 3914, it was excepted from the grant to said railroad company. 

On April 22, 1872, Joseph Pretzel made homestead entry No. 6509 for the E. ^ of 
NAV. i. Sec. 27, Tp. 3 N., R. 1 £., and at that date the railroad company had not 
selected said tract, and hence the title derived from the United States, based upon 
homestead entry No. 6509, is a valid one. 

The claimant does not show that the government patent has been set aside by a 
decree of coart on account of priority of the railroad grant, nor am I aware of a case 
similar to this, in which the court held that the railroa<l had the paramount title. 

The claim was therefore denied, and the patent and quitclaim deed to 
the government made by Pretzel were returned to him. 

A motion for review of this decision was filed by applicant, and as a 
ground therefor it was contended that the letters of your office of May 
16, July 25, and August 22, 1895, were a final adjudication of the right 
of Pretzel to reimbursement ; that by reason of these decisions this 
question was res adjudicata. This motion was denied on the ground 
that the prior instructions given were upon the hypothesis that the 
railroad title was paramount, when, as a matter of fact, it was shown 
not to be by the records of your office, and the whole matter still being 
within the jurisdiction of your office, it had the authority to revoke 
the former decision and render judgment in accordance with the record. 
(Littlepage v. Johnson, 19 L. D., 312.) 

The applicant prosecutes this appeal, assigning error in your office 
decisions in holding that his claim does not come within the provisions 
of the act of March 3, 1887; that the railroad company's title was not 
paramount to that of appellant, and in overruling the motion for 
review. 

It was n^t error in your office to decide this matter according to the 
record facts as subsequently disclosed in your office. Even if the 
former letters could be dignified into a decision, the later discovery of 
the actual coudition of the subject-matter of the controversy, while 
your office still retained jurisdiction, would not prevent it from decid- 
ing it according to the facts. 

The fact that the land was excepted from the grant by reason of a 
prior homestead entry is sufficient in itself to defeat the claim for reim- 
bursement. By reason thereof the title conveyed by the government 
is paramount to the claim of the railroad company. 

This finding renders it unnecessary to discuss any other feature sug- 
gested by the record. 

10671— VOL 24 6 



66 DECISIONS RELATING TO THE PUBLIC LANDS. 

FEEJ^-DESERT L.AXD - STATE SELECTIONS. 

T. J. Foster et al. 

On the location of desert lands by a State nnder the fonrth section of the act of 
August 18, 1894 the reginter and receiver are each entitled to a fee from the 
State of one dollar for each final location of one hundred and sixty acres. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 30, 1897. (J. L.) 

This case involves a question of law affecting administration : 
Have the registers and receivers, in the location of lands by a State 
nnder the fourth section of the act of August 18, 1894 (28 Statutes, 
372-422), the right to demand a fee of one dollar for each officer for 
each final location of one hundred and sixty acres, to be paid by the 
State making such location, in accordance with the first clause and the 
seventh subdivision bt section 2238 of the Revised Statutes of the 

United States t 

» 

The case arose in this way. On August 28, 1896, the register and 
receiver at Buffalo land district, Wyoming, telegraphed your office as 
follows : 

Are we to accept State selections nnder act of August 18, 1894, without fees. 

On the next day, August 29, your office replied by telegraph as 
follows : 

Accept lists under section four act of August 18, 1894, without fees, according to 
office letter of March 21, 1896. Copy will be sent. 

And on the same day your office by letter "F" confirmed the tele- 
gram, and transmitted '^ a copy of so much of said letter to the Hon. 
Secretary in relation to Idaho list 1, under the same act, as decides this 
question of fees." Said letter to the Secretary was dated March 21, 
1896. 

On August 31, 1896, your office by letter "M" instructed the receiver 
of public moneys at Buffalo, Wyoming, to return to the State of Wyo- 
ming all moneys paid as fees on selections of desert lands under the 
4th section of the act of August 18, 1894 (28 Statutes, 372-122) <<as fees 
are not properly chargeable on such selections." 

On September 20, 1896, the register, T. J. Foster, and the receiver, 
F. B. Proctor, in a joint letter respectfully requested your office to 
review and reconsider the decisions aforesaid afifecting their fees and 
greatly reducing their official comi>ensation. 

On October 5, 1896, your office by letter "M'^ denied the application 
for review, but said : 

If yon are under the impresaion that fees are properly chargeable on selections 
nnder the act of Angnst 18, 1894; the proper course for yon to pursue is to appeal 
from the decision of this office. 



DECISIONS RELATING TO THE PUBLIC LANDS. 67 

Whereupon the register and receiver jointly appealed to this Depart- 
ment. 

By reference to the Secretary's letter, dated April 21, 1896, in reply 
to the Commissioner's letter dated March 21, 1896, it will appear that 
the Secretary did not consider or decide the question raised in respect 
to the fees in controversy. That question is now distinctly presented 
for adjudication, unembarrassed by any previously expressed opinion 
by this Department. 

The opinion and ruling contained in your office letter ^^F," dated 
February 20, 1895, and addressed to the register and receiver at Chey* 
enne, Wyoming, is clearly right. The opinion expressed in your office 
letter *'F,^ dated March 21, 1896, and addressed to the Secretary, is 
erroneous. . 

Section 2238 of the Bevised Statutes provides that: 

Registers and receivers, in addition to their salaries, shall be aUowed each the fol* 
lowing fees and commissions, namely : 

» ♦ • « * # # 

Seventh. In the location of lands by States and corporations under grants from 
Congress for railroads and other purposes (except for agricultural colleges), a fee of 
one dollar for each final location of one hundred and sixty acres ; to be paid by the 
State or corporation making such location. 

By the fourth section of the act of August 18, 1894, Congress agreed 
upon certain terms and conditions prescribed, to bind 'Hhe United 
States to donate, grant and patent to the State tree of cost for survey 
or price, such desert lands not exceeding one million acres in each 
State/' as the state might within ten years after the passage of the 
act, cause to be irrigated, reclaimed, occupied and cultivated (to the 
extent of not less than twenty acres in each one hundred and sixty acre 
tract) by actual settlers. There is nothing in this act tending to repeal, 
modify or in any way atl'ect the law contained in section 2238 aforesaid. 
The express limitations— /ree of cost for survey y and free of price — by 
necessary implication exclude any other exemption from the usual costs, 
fees, charges and expenses attending the administration of the Land 
Department in such matters. 

Your office decisions appealed from are hereby reversed. Your office 
will direct registers and receivers, on the location of desert lands by a 
State under the fourth section of the act of August 18, 1894, to require 
the State to pay for each officer a fee of one dollar for each final loca- 
tion of one hundred and sixty acres, as prescribed by section 2238 of 
the Revised Statutes. Your office will also notify any State or States 
having applications under said fourth section pending and undeter- 
mined in which said fees have not been paid, that action upon their 
applications will be suspended, until after they shall have paid to the 
local officers the fees due in accordance with the aforesaid section 2238, 
and this decision. 






68 DECISIONS RELATING TO THE PUBLIC LANDS. 

SWAMP LAXI>— SITRVEY— CUAR.VCTER OF LAXD. 

State of California bt al. v. United States et al. 

Where it ia apparent from the record that in the survey of a township, a large body 
of land a<1jacent to a navigable lake has been omitted from actual survey, 
through the establish men t of a meander line between alleged swamp and <lry 
lands, instead of at the true shore line of the lake, a survey of the lands so 
omitted should be made. 

The claim of a State under the grant of swamp lands must fail if it does not appear 
that the lands were of the character granted at the date of the grant. 

Secretary Francis to the Commissioner of the General Land Office Jan- 
(I. H. L.) uary 30^ 1897. (J. L.) 

This case iuvolves the lands described in the following petition, situ- 
ated in San Francisco land district, California. 

By a petition dated May 29, 1890, John A. Fairchild, Annie Fair- 
child, Jerome P, Churchill, F. E. Wadsworth, Mary Wadsworth, F. S. 
Ackerman, Elisha De Witt, Helen Martin and WiUiam Lennox, 
describing themselves as '' applicants for the goverament title to the 
swamp and overflowed lands hereinafter described," requested the gov- 
ernor of the State of California to apply to the United States surveyor 
general for the State of California, for an immediate survey of the fol- 
lowing described swamp and overflowed lands, to- wit: 

Fractional portions of sections twenty-two (22), twenty-seven (27), twenty*six 
(26), twenty-five (25), thirty-five (35), and thirty-six (36), all in township forty-eight 
(48) north of range one (1) east, M. D. M. 

Fractional portions of sections seven (7), eight (8), nine (9), sixteen (16), seventeen 
(17), eighteen (18), nineteen (19), twenty (20), and thirty (30), all in township forty 
seven (47) north of range two (2) east, M. D. M. 

In support of this petition and as part thereof, they tiled the aflB- 
davits of Jerome Churchill, John A. Fairchild, John Q. Hendricks, 
and David Ream, rcvspectively. 

David Eeam made oath : 

That all of the unsurveyed land in townships 48 north of range 1 east M. D. M., 
and 47 north of range 2 east, M. D. M., which lies west of a meandering ridge or 
elevated strip of land extending from a point near the center of the eastern boundary 
of section sixteen (16) in township forty-seven (47) north of range two east, M. D. M., 
northerly to the northern boundary line of said Siskiyou county, which is also the 
northern boundary line of the State of California, (and which said ridge or strip of 
elevated land forms the natural western boundary of the shore of Little Klamath 
lake — a portion thereof), was in the said year of 1874, and ever since it has been, 
swamp and overflowed land. 

John Q. Hendricks in his affidavit, qualified the foregoing statement 
of David Beam, by inserting after the word *^ all," the words, " or nearly 
all;" and by substituting the year 1872 instead of "1874;," 

Jerome Churchill in his affidavit made oath that: 

All the unsurveyed portion of said last mentioned townships lying west of a cer- 
tain ridge, or elevated strip of land, which forms the western boundary of Little 



DECISIONS -RELATING TO THE PUBLIC LANDS. 69 

Klamath lake properi (and which said ridge or strip of elevated land extends from 
a point near the center of the eastern boundary line of section sixteen (16) in town- 
ship forty seven (47) north of range two (2) east, M. D. M., in a general northerly 
direction, with various indentations, until the said ridgereaches the northern bound- 
ary line of said Siskiyou county), was, on the occasion of affiant's first visit in 
1B65, and ever since it has been, 6wamp and overflowed land. 

John A. Fairchild in bis affidavit, modified CburcbilPs statement 
aforesaid by inserting the year 1858 instead of "1865." 

In pursuance of said request, tbe governor of California, on Septem- 
ber 3, 1890, in accordance witb section 4 of tbe act of July 23, 1866, 
entitled "An act to quiet land titles in California,'' (14 Statutes, 218 — 
U. S. Rev. Stat., Sec. 2488), filed witb tbe United States surveyor gen- 
eral an application to bave segregation surveys made of tbe above 
described lands, representing and describing wbat land of tbe said 
lands, was swamp and overflowed under tbe grant, according to tbe 
best evidence tbat can now be obtained. Tlie governor forwarded witb 
said application tbe petition and affidavits aforesaid, and a copy of a 
plat of survey of said land as made by tbe county su: veyor of Sisliiyou 
county, California. Counsel were employed by tbe State autborities to 
represent tbe State and tbe swamp land claimants ; upon condition tbat 
tbe State "sball not be beld resi)onsible for any costs or expenses in 
tbe matter." 

On Marcb 2, 1891, tbe U. S. surveyor general transmitted to your 
otBce for instructions, all tbe papers in tbe case, including all papers, 
plats and field notes tbat bad accumulated in bis office in consequence 
of correspondence witb tbe State surveyor general. 

On May 29, 1891 (by letter "E"), j'our office, " witbout passing upon 
tbe merits of tbe application," denied it, because tbere were " no funds 
applicable for sucb cbaracter of surveys." Subsequently tbe swamp 
land claimants deposited money to pay tbe expenses of tbe survey 
requested by tbe governor. And on September 11, 1891, eighteen per- 
sons claiming to be homestead settlers upon tbe lands involved, to- wit: 
Will B. McGill, Henry K. Seal, M. Brownell, James Hayes, Joseph 
Knight, J. Tbackery (or Tbackara), J. Boyle, A. Defreits (or Defratas), 
J. Randall, F. Kenney, C. McManners, B. F. Oatman, S. Andrews, J. 
Browning, F. Oatman, T. Smith, Augustus Mansfield, Jack White 
and D, W. Inman, intervened, by filing a petition in which they deny 
tbe claim of tbe State of California and tbe swampland claimants, tbat 
tbe lands involved are or were swamp and overflowed lands made unfit 
thereby for cultivation. On the contrary, they alleged tbat said lands 
were and are good agricultural lands, susceptible of cultivation by the 
ordinary means of farm tillage; and tbat crops of wheat, oats, barley, 
com, grasses and garden vegetables, now grow upon said lands by tbe 
application of the ordinary processes of agriculture. In their petition 
they described severally the tracts of land occupied by tbe settlers 
respectively, and upon which — they alleged — they reside with their 
ianulies, forming a prosperous agricultural community, with dwelling 



70 DECISIONS RELATING TO THE PUBLIC LANDS. 

houses, barus and fences, public roads, a United States post office 
(Browneli), aud a public district school house attended by fifteen pupils. 
They pay taxes, and are in all respects under the government of the 
regular State and county officers. 

Thereupon the homestead settlers prayed that the lands be officially 
surveyed, with a view to determining the respective rights of the State 
of California aud the swamp land claimants on the one hand, aud of the 
United Stittes and the homestead settlers on the other; in order that 
they may be able to make their entries according to law. 

All parties to this controversy in their statements or pleadings agreed, 
(1) that the lands involved have never been officially surveyed; (2) that 
said lands lie outside of Little Klamath lake; (3) that the true bound- 
ary of the lake is the ri<lge or elevated strip of land hereinbefore 
described; aud (4) that said lands should now be officially surve^-ed. 
They dift'ered only as to the character of the lands; which can be deter- 
mined as to each smallest subdivision, only after an official survey. 

On January 7, 1893 (by letter " E"), your office rejected the applica- 
tion of the governor of California *'to have segregation surveys made 
of the above described land;" but instructed the surveyor general to 
call a hearing as provided in the fifth subdivision (or paragraph) of sec- 
tion 2488 of the Revised Statutes of the United States, "to determine 
the character of the lands in question at the date of the swamp-land 
grant, namely, September 25, 1850." 

The hearing began on June 14, 1892, and was closed on August 20, 

1892. 

On September 10, 1892, the surveyor general rendered his decision as 
to the lands situated in township 48 range 1 east, as follows: 

In view of this undisputed evidence^ corroborated by a personal iuspection of the 
land, I am of the opinion and so decide that the land in question was swamp and 
overflowed at the date of the passage of the swamp land act of September 28* 1850, 
and as such should inure to the State. 

On May G, 1893, the surveyor general rendered his finding as to the 
lands situated in township 47 north, range 2 east, as follows: 

In conclusion it is my opinion that the lands nnder consideration embraced both 
swamp and overflowed land and public land (meaning dry and arable lands), at the 
date of the passage of the swamp land act of September 28, 1850; but as the official 
subdivisional surveys have not been extende<l over this laud, it is impossible to give 
either public, or swamp laud an ofiJcial designation. Such being the case, a decision 
must be postponed until the neressary survey nhall have been made. 

It is my judgment that the oflicial plat on Ale in this oflice, of township 47 north, 
range 2 east, M. D. M., is erroneous; that there is a body of land in said township 
which did and does exist, where a lake is alleged to exist ; that the same is not a 
tract of land notoriously and obviously swamp and overflowed. 

That a portion of said laud is public land fit for, and now settled upon and improved 
as, agricultural land ; that portions of the said tract are swamp and overflowed; that 
before the character of these lands can be fully determined by legal subdivisions 
necessary to final adjudication, the public surveys must be extended over the same; 
•nd until snch is done a decision as to the character ot each forty acre tract must be 



DECISIONS RELATING TO THE PUBLIC LANDS. 71 

postponed) and for that pnrpose I recommend au immediate survey of all siirveyable 
land in said toTmship lying outside of the meander line shown on the official plat. 

Ou March 20, 1894, your office decided that the lands described in 
the grovernor's application for a survey, were not swamp and overflowed 
lands made unfit thereby for cultivation, within the intent and mean- 
ing of tho swamp laud grant of September 2<S, 1850, and thereupon 
disallowed the claim of the State thereto and rejected the governor's 
applieatiou for a survey. Your office further found and decided : 

That ** for niAny years (prior to 1874 and doubtless iu 1850), the waters of Little 
• Klamath lake covered all of the lands which were subseciuently found to be situate 
outside of the meander line established by McKay iu his survey of 1874 and 1879/' and 
''that lands covered by an apparently permanent body of water at the date of the 
swamp land gi*ant are not of the character contemplated by said grant.^' . . . ^'It 
therefore follo^nrs that as the lands. which were embraced iu the so-called 'impassible 
tule swamp ' " in T. 47 N., R. 2 E., M. D. M., at the date of the official survey in 1874 and 

1879, were in 1850 no doubt fully and completelj^ covered by the waters of the Little 
Klamath lake, no testimony to the contrary having beeu submitted, and as the lands 
are uow admitted to be in the main adapted to agriculture, it is apparent that the 
State of California has no claim thereto under the swamp land act of September 28, 
1850. Tbe application of the governor of the State of California on September 3, 

1880, for a segregation survey of said lands was rejected for reasons set forth in office 
letter *' E " of January 7, 1892. The claim of the State to said lands, on the assump- 
tion that the same were swampy and overflowed on September 28, 1850, is hereby 
disallowed. 

Your office then proceeded to state, that 

an examination of the official records shows that all of the lands in the several lots 
in sections 18, 19 and 30. abutting on the official meander lines of Little Klamath 
lake, liave been disposed of; also, with the exception of two lots, all of the similar 
lots in. sections 17 and 20. With the exception of lot 1 iu section 34 and lots 1 and 6 
in section 35, the title to all of the remaining lands adjacent to and closing on the 
meander lines, is still vested in the United States^ 

And after referring to the case of "Lake Malheur" reported in 16 
L. D., 256, and others, your office decided as follows : 

It therefore seems clear that the requisite exterior, meander and subdivisional 
lines in T. 47 N , R. 2 £., M. D. N., should be extende<l, where the title to the lands 
np to the shore line remains in the government, and you are accordingly hereby 
authorized to award a contract to a competent and reliable deputy surveyor for the 
extension of sahl lines. This authorization, however, must not be applied to any 
portion of the uncovered or recession lands in said township where the titles to the 
lots adjoining the original meander lines of Little Klamath lake in sections 17, 
18, 19, 20, 30, 34 and 35, as hereinbefore detailed, have been disposed of; it being 
held in those cases that the riparian rights of said adjoining proprietors must be 
recognized. 

In resx)ect to "the alleged swamp and overflowed lands in the frac- 
tional portions of sections 22, 25, 26, 27, 35 and 36, iu township 48 
north, range 1 e^st, M. D. M., as claimed by the State of California 
under the swamp land grant of September 28, 1850, your office found 
the facts as follows: 

1. In the absence of evidence to the contrary, and in view of the admitted condi- 
tion of the lands in 1887, as shown by the returns of the county surveyor, it appears 



72 DECISIONS RELATING TO THE PUBLIC LANDS. 

fair to preenme that at the date of the swamp grant in 1850 the laDds in qaestion 
were covered with water, and were in nn sense swamp land as contemplated by the 
statute. It is held by the Department that land covered by an apparently perma> 
sent body of water at the date of the swamp grant is not of the character contem- 
plated by said grant. 

2. The official records do not show that the title to any of the lands in T. 48 K., 
R. 1 E. (except to the swamp lands in sections 21, 22, 27, 28, 33, 34 along Hot creek, 
and in section 36, all of which are denignated aM swamp on the official plat), has 
pasf^ed from the government. 

And thereupon your office decided as follows: 

For reasons herein set forth, the application of the State of California that the 
lands in the designated fractional sections in T. 48 N., R. 1 E., M. D. M., be declared 
as swamp and overflowed land within the intent and meaning of the swamp land 
grant of September 28, 1850, is hereby rejected. 

The application for the survey of these lands was rejected for reasons stated in 
office letter '' E *' of January 7, 1892 ; I know of no reason why the said action shonld 
be reversed, and the same is reaffirmed. 

Subsequently your office overruled a motion for a review of said 
decision; and thereui)on the homestead settlers aforesaid appealed to 
this Department. 

The State of California and the swamp land claimants have not 
appealed; and to that extent at least they seem to have acquiesced in 
the decision of your office, and to abandon all claim of the lands in 
question under the acts of September 28, 1850, and July 23, 1866 (14 
Statutes, 219). This conclusion is placed beyond all doubt by the fact, 
that the swamp land claimants have employed special counsel to resist 
and oppose the homestead settlers' appeal. On page 2 of the brief 
filed by said counsel it is said : 

The present brief is filed on behalf of John A Fairchild and others, who are own- 
ers of tracts adjoining a portion of the land in controversy^ and who seek an affirm- 
ance of the Commissioner's derision establishing their title as riparian owners. 

The plaintiffs manifestly expect, under color of riparian rights as 
recognized and enforced by your office decision, to accomplish the 
same practical results that they had hoped to attain by their petition 
as swamp land claimants. 

Following the method adopted by the surveyor general and also by 
your office, this Department will consider the two townships separately. 

Township 47 N., R. 2 E., M. D. M. 

This Department c/)ncur8 in your office finding that on September 
28, 1850, the lands embraced in T. 47 K, R. 2 B., M. D. M., were not 
swamp and overflowed lauds made unfit thereby for cultivation ; and 
your office decision disallowing the claim of the State of California to 
said lands under the swamp laud act of September 28, 1850, is hereby 
affirmed. 

As was said in the case of Oregon i\ Porter, 22 L. D., 156-159: 

V^hen after the lapse of more than (forty) years, — after the death of a generation 
of men — persons- claiming t<i be assignees of the State, go ont to search for lauds 



DECISIONS RELATING TO THE PUBLIC LANDS. 73 

which were swamp and overriowed in (1850), they mnst expect to find the harden of 
proof aggravated, hnt not shifted: Especially if the lands they may select, he not 
now swamps, hnt the productive farms and healthy homen of indnstrions citizens. 

Your office erred in assuming that Little Klamath lake is a non-navi- 
gable lake. In fact, it is a navigable lake, eighteen or twenty miles 
long and ten or twelve miles wide, lying about one half in California 
and half in Oregon, with welldefinexl shores full of deep water, over 
which there is now, and for many years has been, carried on useful and 
profitable interstate commerce of freights and passengers, in steamboats 
and other vessels. (See record of testimony, i)ages 614, 615, 621 and 
622.) The cases cited and quoted in your office decision, in respect to 
riparian rights, and lands acquired by accretion or reliction, are not 
relevant in this case. 

Your office erred in finding as follows: 

In the ahsence of any testimony showing the character of the lands in T. 47 N., R. 
2 E., at the date of the swamp land grant (Septeuiher 28, 1850), taken in conjunc- 
tion with the admitted condition of the *^ impassahle tiile swamp'' in 1874 and 1879, 
the conclnsion is reached that for many years (prior to 1874 and douhtless in 1850), 
the waters of Little Klamath lake covered all of the lands which were suhsequently 
found to he situate ontside of the meander line estahlished hy McKay in his surTey 
of 1874 and 1879. 

The testimony does not sustain said ''conclusion." The topography 
of the neighboring country as shown in evidence, proves conclusively, 
that it is physically impossible, that the lands referred to, could have 
been covered in 1850, or in 1874, or in 1880, or at any other time, since 
1850, by the waters of Little Klamath lake. 

In the mouth of July, 1874, when United States deputy surveyor 
Alexander McKay made his survey of said township, he ran and estab- 
lished a meander line to mark the boundary between the *' plateau" of 
arable public land and the lands which he considered swamp and over- 
flowed and unfit for cultivation. Then and there, between that meander 
line and the shore or water line of the distant lake itself, there lay 
uncovered and visible to the eye, a tract estimated to contain 7,080.69 
acres of land, which he, the deputy surveyor, did not survey, but 
designated on his plat and in his field notes as ''swamp and overflowed 
land." 

Moreover, if it were true that in the year 1850, said 7,080.69 acres 
constituted part of the bed of Little Klamath lake and were entirely 
covered by its waters, that fact (if shown), would be immaterial and 
irrelevant in this case. If in the interval between 1850 and 1874, said 
7,080.69 acres had been brought to the light, by accretion or by relic- 
tion — ^by the gradual accumulation of earthy matter or by the reces- 
sion of the waters of the lake — such increment of land would have 
been in 1874 the property of the United States as the sole owner dur- 
ing that period of time. 

The only colorable evidence to be found in this record tending to 
8upi)ort j'our oifice finding "that for many years (prior to 1874 and 



74 DECISIONS RELATING TO THE PUBLIC LANDS. 

doubtless in 1850), the waters of Little Klamath lake covered all the 
lauds which were subsequently found to be situate outside of the 
meander line established by McKay in his survey of 1874," is one of 
the plats or maps of T. 47 X., R. 2 E., M. D. M.,uowou tile in your office. 
This map bears the certiticate of the surveyor general in the following 
unus'iMl form: 

The above map of township No. 47 north, range No. 2 east, Monut Diablo nieridian, 

has been constructed in accordance with instructions from the General Land Office 

dated November 26, 1879, from the field notes of the surveys thereof on file in this 

office. 

The<». Wagner, 

Sttrr. Genl, Cat. 
SrRVEYoR Gkxekal's Office, 

San FranciscOf California, February 3rd^ 188(K 

There is another plat or map of said township also on file in your 
office (and bound in the same volume 27 with the other), which bears 
the surveyor general's certiticate in the usual form, as follows: 

The above map of township No. 47 north, range No. 2 east, Mount Diablo meridian, 

is strictly conformable to the field notes of the surveys thereof, on file in this office, 

which have been examined and approved. 

Theo. Wagner, 

Surveyor General's Office, Surv, GenL Cala, 

San FrancincOy California^ Norembtr IS, 1879, 

The history of these two maps of the same township as compiled 
from the official papers now before me, will make it clearly manifest 
that your office committed errors in holding (1) that the lands in ques- 
tion were once part of the bed of Little Klamath lake; (2) that the 
fractional lots shown upon said maps, abutted upon or were adjoining 
to the shore line of said lake; and (3) that the owners of said lots had 
riparian rights which must be recognized. 

The date of McKay's contract with surveyor general Hardenburg 
was October 6, 1873. McKay began his survey on July 7, 1874, and 
finished it on July 20, 1874 : — except as to four courses, which he (the 
deputy surveyor), in his field notes calls, ''Meanders of Little Klamath 
lake and outer Hue of tule and swamp unfit for cultivation,"' **This 
water line was run on the ice February 19, 1879," as hereinafter stated. 

McKay did not return his field notes to the surveyor general's office 
until 1877; when they were returned to him for the reason "that they 
were not sufficiently explicit as to the meander line of Klamath lake as 
run by him." "The notes were again returned by Mr. McKay April 3, 
1879, with the explanation that the long delay had been occasioned by 
the necessity of waiting until the ice had formed so he could re-run 
the meander line as directed by the office;" and with an amendment 
to the field notes in the following words: 

Meanders of Little Klamath lake and outer line of 
tule and 8wauip unfit for cultivation. 

Commencing at the end of the 13th course aa reported, 
in the meanders of Sec. 25 of the inner meander line 
between arable land and swamp and overflowed land 
unfit for cultivation. 



DECISIONS RELATING TO THE PUBLIC LANDS. 75 

Course. Dist. Rexoarks, 

S. 75- W. 101.50 

N. 20^ W. 253.00 

N. 3^ W. 50.00 

N . 33^ "NV. 100.00 To ^ Sec. and meander cor. between Seen. 4 and 33 

ou the north boundary of the township. Note. This 

water line was run on the ice Feb. 19, 1879. 

Surveyed by 

Alkx. McKay. 

On September 29, 1879, Surveyor General Theo. Waguer, accom- 
panied by one of bis deputies as compassmau, went in person upon 
the premises, and ''carefully retraced the line of segregation of the 
swamp and overflowed land from the dry land." 

I found (he said in his report to your office of November 14, 1879), that said line 
^as properly established ; and that the meander line of Mr. McKay's snrvey had 
been properly run upon the shores of the lake, and might have been established at 
any time by submitting to a little inconvenience and wading through the mud — the 
waiting for the formation of the ice being wholl^*^ unnecessary. 

And on November 13, 1879, the surveyor general certified the map 
which had been prepared in strict conformity with the field notes of 
the surveys of the township examined and approved, as first made by 
Deputy Surveyor McKay and afterwards by the surveyor general in 
person. The face of the map itself, and the application to the map of 
the calls of the field notes of the meanders of the swamp and the lake 
respectively, show that in 1874 and 1879 there was in existence, 
uncovered and visible to eye, a body of land called "swamp" by the 
surveyors, and containing by estimation 7,080.69 acres, which was care- 
fully segregated from the arable land and from the lake, by the inner 
and the outer meander lines delineated and described. 

On November 26, 1879, by letter "E" addressed to the surveyor 
general, your office, 

found the returns of snrvey defective and irregular . . . . . in that 
neither the exterior meanders nor subdivisional lines were actually established in 
the field; .... but the line called the outer line of tule &.C., or segregation 
of the impassable swamp from the open lake, although run and measured on the ice, 
was not marked in any manner, neither was there any subdivisional corner set or 
'iriren in any part of the ^'impassable swamp.'' 

Your office then proceeded to say: 

Under these circumstances the survey as a whole, cannot be approved by this 
office, and is therefore rejected in so far as relates to the running of said ''outer 
meander line" and the consequent platting of swamp lands. 

I have to direct that upon receipt hereof, you will make annotation upon the plat 
and field notes of this snrvey, of my decision, and prepare a new plat showing the 
survey of the township only to the *' inner meander line," so caUed by the surveyor. 

It is plain that the phrase ^Mnuer meander line" was understood by 
all parties to mean the meander line between arable land, on the one 
side, and swamp and overflowed land unfit for cultivation, on the other; 
and that the phrase "outer meander line," meant the line along the 
shore of the lake proper, close to the water's edge, separating the water 



76 DECISIONS RELATING TO THE PUBLIC LANDS. 

of tbe lake from the swamp and overflowed laud. The objection of 
your office embraced only tbe four meander courses copied above, which 
were run and measured on ice (and which on the map first returned, 
marked the western boundary of Little Klamath lake); and ^Hhe con- 
sequent platting (imaginary) of swamp lands." Your office distinctly 
recognized "the inner meander line so called by the surveyor" — ^notas a 
meander of Little Klamath lake — but as the line of demarkatiou between 
the lands high and arable, and the lands alleged to be swamp and over- 
flowed; and plainly directed the surveyor general to "prepare a new 
plat showing the survey of the township only to that line," which was 
in fact the extent of McKay's actual survey. Your office thus approved 
the plat and survey and fleld notes first returned, so far as courses 
had been run, lines meandered, and corners established, actually, in 
the field; and rejected them only as to the residue of the township. 
The new plat was intended to show that the township was only par- 
tially surveyed; and that all the lands north and east and northeast of 
the arable land aforesaid were uu surveyed. Your ofiice gave this direc- 
tion with knowledge of the fact, that said unsurveyed portion of the 
township embraced (by estimation) 7,080.69 acres said to be swamp 
and overflowed, and 7,619.13 acres said to be covered by the waters of 
Little Klamath lake. The new map was to be ancillary to the first 
map, and prevent confusion by showing separately the arable public 
lands open to settlement and entry : Reserving for future consideration 
all questions between the United States and the State of California, in 
respect to the alleged swamp and overflowed lands. 

On February 4, 1880, the surveyor general furnished the new plat or 
map "constructed in accordance with instructions." It shows onl}'^ the 
arable public lands which had been actually surveyed. The lines of 
the survey were closed upon the " inner meander line," separating the 
arable from the swamp lands; and the fractional subdivisions thereby 
made necessary, were divided into lots and numbered. The new plat 
and the first plat were bound together in volume 27 of the official 
maps of California, and thus remain of record in your office jointly as 
a delineation of the township. They show conclusively that none of 
the lots surveyed and numbered therein abut upon or adjoin Little 
Klamath lake; — except lots 4, 5 and G in section 25, which have not 
been disposed of by the United States. 

A ftirther examination of the records of your office shows that only 
four patents have been issued for said lots, as follows: 

On May 6, 1887, to Jerome Churchill for lots 1, 2, 3, 4 and 5 of section 
18 and lot 2 of section 19. 

On April 29, 1889, to Manuel J. Miller for lot 1 of section 30. 

On January 28, 1890, to Norris F. Skeen for lots 3, 4 and 5 of sec- 
tion 35. 

On November 9, 1891, to Annie E. Fairchild for lots 1, 2 and 3 of 
section 17, and lots 1 and 2 of section 20. 



DECISIONS RELATING TO THE PUBLIC LANDS. 77 

Two of said patentees, Jerome Churchill and Annie E. Fairchild were 
original plaintiffs in this controversy. None of them have any riparian 
rights whatever. The lands granted by their patents were limited by 
the straight subdivisioual and meander lines which defined the lots 
on the face of the map. 

The voluminous testimony in this case has been carefully examined. 
There appear such discrepancies as usually appear when interested 
parties, very much in earnest, are called to testify against each other. 
The witnesses all agreed that in 1874, there was no lake upon the land 
in controversy ; and that the estimated tract of 7,080.69 acres, desig- 
nated on the first map as ''swamp and overflowed land," was land in 
full view. They difl'ered as to the character of the land, whether it was 
in whole or in part, wet or dry — arable or unfit for cultivation. It is 
not necessary for the disposition of this case to decide between them. 
It is enough to find, as this Department does, that there is a large body 
of public lands belonging to the United States which has never been 
surveyed now occupied by homestead settlers. 

Your office decision of Marcn 20, 1894, in respect to the lands in T* 
47 N., E. 2 E., M. D. M., is hereby reversed so far as it conflicts with 
the opinions herein expressed. Your office is hereby instructed to 
cause an official survey to be made of all the lands in said townshi)» 
lying north of the i^eander line established in the field by deputy sur- 
veyor McKay and delineated on the maps of said township on file in 
your office^ and cause said survey to be closed upon the true shore or 
water line of Little Klamath lake, as ascertained, meandered and 
established by actual survey. 

Township 48 N., R. 1 B., M. D. M. 

In respect to the lands in T. 48 !N., R. 1 E., your office decision found 
that they were not in 1850 swamp and overflowed and unfit for cultiva- 
tion; and decided that they did not pass to the State of California 
under the act of September 28, 1850. This finding and decision are 
hereby approved and affirmed. 

Your office further found that on September 28, 1850, said lands were 
probably a part of the bed of Little Klamath lake, and covered with 
water. The only evidence in this case tending to support this finding 
is the official map of said T. 48 X., R. 1 E., approved by the surveyor 
general on April 21, 1875, and now on file in your office. Said map 
purports to be a complete plat of the whole township and its correct- 
ness does xiot appear to have been called in question before this contro- 
versy arose. On the face of the map 772.40 acres of "swamp and 
overflowed land'' are designated within the surveyed i)ortion of the 
township, to- wit : 40 acres in section 36, 200 acres in section 34, 80 
acres in section 33, 280 acres in section 28 and 172.40 acres in sections 
21 and 22. **The meanders of Little Klamath lake," which were run 
on May 30, 1874, are plainly drawn upon the map, and seem to mark 



78 DECISIONS RELATING TO THE PUBLIC LANDS. 

the boundary between the arable public lands and the waters of the 
lake, as they stood on that day. The area of the lake was estimated 
at 5,622.65 acres. The plaintiffs in their application claimed only 
1,685.60 acres; which according to MitchelFs map filed by them, appears 
to be an increment of land developed since the date of the official sur- 
vey; and which has been caused, perhaps in part, by the fact that 
Little Klamath lake has been tapped to irrigate large areas of arid 
lands in Oregon, which lie below the level of the lake. 

Your office decision certifies that, — 

The official records do not show that the title to any of the lands in 
T. 48 N., R. 1 E. (except to the swamp lands in sections 21, 22, 27, 28, 
33 and 34 along Hot creek and in section 36, all of which are desig- 
nated as swamp on the official plat), has passed from the government. 

So that the governmeut remains the sole owner, except as to said 
<< designated'^ swamp subdivisions. 

The testimony in respect to the lands in this township is compara- 
tively meagre (Record pp. 1 to 52). Only seven witnesses were intro- 
dnced by the plaintififs, and none by the defendants, of whom, only one 
ever claimed a settlement on this township, to- wit: ^'D. W. Inman, on 
portions of section 36, T. 48 N., R. 1 B.''; and he appears to have aban- 
doned his settlement. The concurrent testimony of all of said wit- 
nesses shows that in the year 1874, there was no lake, at the places 
where the lands claimed by the plaintiffs in this township now appear; 
which accords with the affidavits filed with the plaintiffs' application, 
and appears to be true notwithstanding the official map. 

This Department does not concur in your office opinion that "it 
appears fair to presume that at the date of the swamp grant in 1850 
the lands in question were covered with water." 

That part of your office decision which rejects the application of the 
governor of California for a survey of the lauds claimed in this town- 
ship 48 N., R. 1 E., is hereby affirmed; but without prejudice to the 
jurisdiction and authority of your office, at any time, upon the applica- 
tion of any other person interested, or of your own motion, to direct an 
extension of the lines of the former survey over the whole township, in 
order that the meander lines now appearing on the map may be read- 
justed ; that the true shore or water lines of Little Klamath lake, and 
of other meanderable lakes that may be found in said township, may 
be meandered and definitely established; and that the character of the 
lands now apparent, down to the smallest subdivision, may be deter- 
mined. 



DECISIONS RELATING TO THE PUBLIC LANDS. 79 

ALIEN ATU>X-IIOMESTEAI> ENTHY. 

Walker r. Clayton. 

A written agreeineBtto convey the land covered l>y ji homestead entry, made prior to 
the submission of final proof, will defeat the right of the entryman to perfect 
his entry. 

Secretary Francis fo the Commissioner of the General Land Office, Jan- 
(I. H. L.) vary 30, 1^97. (E. B., Jr.) 

I have (considered the case of L. M. Walker r. Charles J. Clayton, on 
ap}>eal by tlie latter from your office decision of October 29, 1895, hold- 
ing his homestead entry, No. 7386, made December 27, 1889, for the 
NE. \ of section 32, T. 2G S., R. 23 E., M. D. M., Visalia, California, 
land district, for cancellation on the ground, in effect, of his bad faith, 
as evidenced by his agreement with one May, to convey the land to 
him, ptior to final proof. The only question necessary to be discussed 
is that of bad faith. 

A contest charging generally, that Clayton made the entry for specu- 
lative parxK)des and specifically that on July 14, 1894, he entered into a 
written contract with E. F. May, to convey to him for a valuable con- 
sideration in money and land the tract above described and certain 
other property, was initiated by said Walker, February 7, 1895. He 
had, on August 30, 1894, filed a contest affidavit of the same tenor, 
which was dismissed December 13, 1894, upon Clayton's motion, '* for 
want of prosecution.'' A hearing, in March, 1895, upon the contest 
first above mentioned, resulted adversely to the entryman, the decision 
of your office being an affirmance of the decision of the local office. 

The record shows that Clayton entered into a contract as charged, 
which was to be executed within sixty days from the date thereof, the 
party making default to forfeit to the other '^ one thousand dollars as 
liquidated damages, and such other damages as may in consequence of 
such failure be legally established.'' An endorsement on the contract 
shows that Clayton sought an extension for ninety days of the time 
within which the contract might be executed. No extension was 
agreed to by May. The contract has not been executed in any particu- 
lar, so far as appears, on the part of either party. It is admitted by 
Walker that Clayton had complied with the homestead law up to the 
time of the hearing in respect to residence and cultivation. 

Clayton commenced to reside upon the land in February, 1890. He 
was allowed leave of absence under the act of March 2, 1889 (25 Stat., 
854), from May 13, to December 13, 1890, a period of seven months. 
The five years of residence and cultivation necessary to acquire title 
by that means under the homestead law would not end, therefore, until 
September, 1895. The agreement to convey was thus made about four- 
teen months before he could submit his final proof or acquire any title 



80 DECISIONS RELATING TO THE PUBLIC LANDS. 

to the land, uuless by purchase under section 2301 of the Revised Stat- 
utes, and it is not shown that he had any intention to so purchase. In 
his homestead affidavit he ha<l sworn that the entry was made for his 
exclusive benefit and not directly or indirectly for the benefit or use 
of any other person or persons whomsoever, and he knew that in 
his final affidavit he would be required to make oath, subject to an 
exception not here in point, that he had not alienated any part of the 
land (Sections 2290 and 2291, Kevised Statutes). It was evidently 
implied, if not expressed, in his contract with the United States, that 
he would continue to hold, reside upon and cultivate the laud for his 
exclusive use and benefit until the time should arrive, when, aft^r the 
submission of final proof as required by law, he had earned his right 
to receive patent therefor. 

It is no adequate defence that May could not enforce specific perform- 
ance of the contract. Clayton might, of his own volition, have carried 
it out, and it is this mischief that the statute is designed to remedy 
(Moliuari i\ Scolari, 15 L. D., 201). Neither is it any sufficient answer 
that by its terms the agreement had come to an end long before contest 
was initiated. It was in force when the first contest affidavit was filed, 
and was sought by Clayton on August 29, 1894, to be continued ninety 
days beyond the limit first agreed upon. If when threatened with 
exposure of ba<l faith a homesteader could in each instance avoid the 
consequences by simply repudiating his contract to convey, the sanction 
of the law would be overthrown. 

In the case of Tagg i\ Jensen (16 L. D., 113), it was laid down as the 
settled construction of the pre-emption law relative to alienation '' that 
any agreement to convey any part of an entry or claim to another made 
prior to final proof will defeat the claim." While the language of the 
pre emption law was more explicit than that of the homestead law as 
it stood at the date of this entry, the spirit and intent of ea<;h on the 
point at issue was the same; and section 2290 of the Revised Statutes, 
as amended by the act of March 3, 1891 (26 Stat., 1095), was made to 
conform substantially to the language of the former. See in this 
connection Bashford v, Clark et at, (22 L. D., 328). 

The suggestion in the argument of counsel that Clayton *'may have 
been inveigled into making" said contract by the contestant Walker, 
should receive some attention. It appears that the initiative in the 
matter of said contract was taken by Clayton himself; that he came to 
the office of Walker who was then a member of a firm of real estate 
agents in San Francisco, California, and employed him to effect the 
sale or exchange of this tract and other real estate then held and 
claimed by him (Clayton); and that Walker had no knowledge that 
any of the property thus sought to be sold or exchanged was govern- 
ment land, until on August 29, 1894, when Clayton sought the ninety 
day extension of the contract hereinbefore mentioned, which extension 
was not made. Walker was then informed by Clayton for the first time 



DECISIONS RELATING TO THE PUBLIC LANDS. 81 

that this tract aud anotber, for which the latter had made timber cul- 
ture entry, and which were both included in the contract to convey^ 
were government land upon which he had not made final proof, and 
that he wanted the extension to give him time within which to make 
such proof. Be had up to that time successfully concealed from 
Walker the fact that the contract embraced government land, concern- 
ing which the former was apparently attempting to commit a fr:uid 
against the government. The next day after hearing this fact Walker 
filed his first contest affidavit against the entry. The evidence doe& 
not in any way connect Walker with the attempted fraud. 

The decision of your office is affirmed, Clayton's entry will be can- 
celed, and Walker given the preference right to enter the land. 



APPLICATION TO ENTER-CONTEST-RELIXQUISHMENT. 

CowLEs V. Huff et al. 

An application to enter Bhonld not be received, during the time allowed for appeal 
from a judgment canceling a prior entry of the land applied for; nor the land 
so iDvolved held snbject to entry, or application to enter, until the rights of the 
entryman have been finally determined. 

The case of Allen r. Price, 15 L. D., 424, cited and followed; and the case of Henry 
Gauger, 10 L. D., 221, overruled. 

Where an entry is nnder contest, and a relinquishment thereof is filed, followed by 
an application to enter, made by a stranger to the record, such application 
shonid be held to await the expiration of the time allowed a snccessfnl con- 
testant for the exercise of his preferred right of entry, or may be allowed if it 
appears that snch contestant is disqualified to make entry, or has waived his pre- 
ferred right. 

Secretary Francis to the Commissioner of the General Land Office, Jan- 
(I. H. L.) uary 30, 1897. (W. M. W.) 

In the case of R. Jay Oowles r, James L. Huff et al. Oowles appealed 
from year office decision of March 31, 1894, rejecting his application to 
enter the NE. J of Sec. 7, T. 22 S., R. 34 W., Dodge City, Kansas, land 
district. 

On October 31, 1895, my predecessor rendered a decision reversing 
the judgment of your office in said case. By letter of November 14, 
1895, the Department requested your office to re transmit the papers 
and decision in the case for re-examination, which request your office 
complied with on the 20th of November, 1895 ; and also advised the 
Department that said decision had not been promulgated. 

Such re-examination has been made. It appears that on April 28, 
1885, one Mary J. Moore made timber-culture entry for the land in 
question. 

On May 11, 1889, A. C. Brady filed a contest against Moore's entry, 
charging failure to comply with the law. 
10671— VOL 24 6 



82 DECIBI0N8 RELATING TO THE PUBLIC LANDS. 

On December 19, 1891, your office held Moore's entry for cancellation 
upon Bracly's contest. 

On December 26, 1891, James L. Huff applied to make homestead 
entry for the tract. His application was rejected by the local officers, 
and he appealed to your office. 

On January 8, 1892, Moore appealed to the Department from your 
office decision of December 19, 1891, holding her entry for cancellation. 

On July 7, 1893, the Department affirmed the judgment of your office 
holding Moore's entry for cancellation. 

On July 22, 1893, said departmental decision was promulgated. 

On August 19, 1893, Moore filed a motion for review. 

On December 26, 1893, Moore's relinquishment was filed in the local 
office, bearing date August 21, 1893. 

On December 26, 1893, at the same time Moore's relinquishment was 
filed in the local office, Cowles presented his application to enter said 
land, which was rejected by the register and receiver because of Brady's 
pretorence right and the rights of Hufif under his appeal. 

Moore's relinquishment having been forwarded to th^ Department to 
accompany the motion for review filed by her in the case, thereupon, on 
January 25, 1894, the motion for review was returned to your office, with 
the statement that action by the Department was rendered unnecessary 
by said relinquishment. 

Cowles appealed on February 10, 1894, irom the action of the local 
officers rejecting his application to enter said land, urging that he was 
the first legal applicant for this laud; that Brady was not qualified to 
enter the tract, and that he had sold his interest to Hufif before the 
latter presented his application to enter; that Huff gained nothing by 
his application, for the reason that the land applied for was not subject 
to entry at the time the application was made; and that he (Cowles) 
was a bona fide settler on the land. 

In reply to Cowles' appeal, Hufif denied the alleged superior right of 
Cowles, and furnished an affidavit of Brady, sworn to February 7, 1894, 
stating that he (Brady) brought his contest against Moore in good faith, 
expecting to make a timber culture entry for the tract in question ; that 
by reason of the repeal of the timber culture law *^he is not now a 
qualified entryman (having used his homestead right), and that he can 
not enter said tract" He also stated that he informed Huff of these 
facts, and that Huff has paid the expenses of said prosecution to him 
(Brady), and ^^in consideration of which affiant agreed to assert no 
claim to said tract, and that with this understanding said Huff made 
application for said tract." 

Cowles' appeal and Huff's answer were forwarded by the local officers 
to your office on the 19th day of February, 1894, and though recieived 
on the 23d day of February, 1894, by your office, they did not reach the 
files ill time to be considered in your office decision of February 27, 



DECISIONS RELATING TO THE PUBLIC LANDS. 83 

1894, which closed the case of Brady v. Moore, and held that the local 
ofiScors 

«rred in refeeUng Hnifs application to enter after this office had hehl Moore's entry 
for cancellation and before Moore had appealed from snoh action (see Henry Ganger, 
10 L. D., 221, and Patton r. Kelley, 11 L. D., 469), as yon should have held snch appli- 
cation to await the termination of the right of the prior parties; directed yon (the 
local officers) to allow Huff to enter the land in controversy, if qualified to do so, 
in the event Brady did not exercise his preference right of entry ; 

aud instructed the local officers to forward the appeal of Cowles in case 
he should tile one. 

By your office decision of March 31, 1894, Cowles' appeal was dis- 
missed, without prejudice to his right to contest Huff's entry, should 
the latter make entry, upon any sufficient ground. Huff was allowed 
by the local officers to make homestead entry for said land on March 
29, 1894. 

Cowles appeals. 

The errors assigned substantially amount to two propositions : (1) That 
Huff acquired no rights by virtue of his application or appeal of D^em- 
ber 26, 1891, for the reason that at that time the laud in question was 
covered by the uncanceled entry of Moore. (2) That Moore's relin- 
quishment, filed on the 26th day of December, 1893, served to release 
the land, and that Cowles' application to enter the land, made on the 
same date, should have been allowed. 

Counsel for appellant has filed a brief, wherein he contends that the 
case of Henry Ganger, 10 L. D., 221, cited in your office decision, is 
distingaishable from the case at bar, and that the other case cited, 
Patton V. Kelley, 11 L. D., 469, is not in point. 

In order to determine the questions presented, it seems proper to 
refer at some length to the rulings of the Department on the points 
raised. 

In the case of Henry Ganger, supruj a timber culture entry had been 
made and contested ; on such contest said entry was held for cancella- 
tion ; before the time in which the entryman might have appealed and 
that allowed the contestant to assert his preference right of entry had 
expired, Ganger made application to enter said land under the timber 
culture law. His application was rejected by the local officers, and their 
judgment was affirmed by your office. The Department reversed the 
decision of your office upon Ganger's appeal, holding as follows: 

A judgment rendered by your office holding an entry for cancellation is final as to 
your office, and an application to enter during the time allowed for appeal from 
snrh judgment "should be received subject to the right of appeal, but not made of 
record until the rights of the former entryman are finally determined, either by the 
expiration of the time allowed for appeal or by the judgment of the appellate tri- 
bnnal" (John H. Reed, 6 L. D., 563); and an application to enter, made before the 
time aUowed the successful contestant to assert his preference right has expired, 
should be allowed subject to such preference right, and, on its subsequent assertion 
within the prescribed time, ''•iq'^ noting thereof should be given the Intervening 



84 DECISIONS RELATING TO THE PUBLIC LANDS. 

entryman, with opportunity to show cause why his entry should not be canceled, 
and the contestant allowed to perfect his entry*' (Geo. Premo, 9 L. D., 70: Welch 
r. Duncan, 7 L. D., 186). 

The record iu the John H. Keed case shows that, at the time said 
Reed applied to enter the tract there in question, it was shown by tlie 
records of your office and the local office, to be open and subject to 
entry by the first legal applicant; of this there can be no question, for 
the entry of George 6. Reed for the tract was canceled and so noted 
on the records of the local office on January 5, 1885, and thereafter 
there was no entry or application to enter prior to January 23, 1885, 
when John H. Reed made his application to enter it. It thus appears 
that the date of the cancellation of Oeorge G. Reed^s entry was not 
material in determining the case before the Department. The reason- 
ing in the Reed case quoted in the Ganger case was based solely on an 
immaterial issue, not involved in the case. The quotation in the Gan- 
ger case from the Reed case is mere dictaj and can not be accepted as 
authority. 

In Patton v, Kelley, 11 L. D., 469, the facts are, that on December 20^ 
1886, Kelley made homestead entry for the land involved; Patton con- 
tested said entry, and on June I, 18S9, your office held the entry for 
cancellation; on July 10, 1880, the widow of the entryman appealed 
from your said office decision ; on August 8, 1889, the widow of the 
contestant filed an application to make homestead entry of the tract; 
the register and receiver rejected her application, because the tract was 
covered by Kelley's entry; on her appeals, respectively, to your office 
and the Department, the decision of the local officers was affirmed. It 
is clear that Patton r. Kelley does not follow the Ganger case. 

In Perrott r. Connick, 13 L. D., 598, the Ganger case is referred to, 
but the record shows that Perrott^s application to purchase the laud 
in question was made two days after the final judgment of the Depart- 
ment cancelling the cash preemption entry of Setchel and at a time 
that the land was clear and open to entry. 

The right of Henry Ganger to the land involved in his case, reported 
in 10 L. D., 221, was also involved in the case of Owens v. Ganger, IS 
L. D., 6. It was there held that Ganger acquired no rights to the land 
under his contest, for the reason that the entry of Sheppard was can- 
celed ux>on a prior contest of one Bunce, and that Owens was the first 
applicant to enter the land after Sheppard's entry was canceled. There- 
upon Ganger's entry was canceled and Owens' former entry reinstated. 

In McNamara r. Orr et a?., 18 L. D., 504, the Heniy Ganger case was 
referred to, but the doctrine announced was not a controlling factor in 
determining that case. 

In McMichael r. Murphy et aZ., 20 L. D., 147, the Henry Ganger ca«e 
was cited with approval. The facts showed that the entry under attack 
was held for cancellation March 7, 1890, and four days thereafter an 
application to make soldier's additional homestead entry of the tract 



DECISIONS RELATING TO THE PUBLIC LANDS. 85 

was made; that sach applicatiou was not placed of record, but lield 
cmder the rale announced in the Gauger case. These facts clearly 
brought the case within the rule laid down in the Gauger case, and was 
governed by that rule. 

In Allen r. Price, 15 L. D., 424, it was held (syllabus) that: 

On the saccessfnl tenuinatiou of a contest the land embraced within the canceled 
entry should be reserved for the benefit of the contestant during the statutory period 
provided for the exercise of Ii'm preferred right of entry. If an application to enter 
is presented during said period, by a stranger to the rec<»rdy it should be held in 
abeyance to await the action of the contestant. If a waiver of the preference right, 
duly executed by the contestant, is filed, the tract will be thereafter held subject 
to entry. 

On March 30, 1893, the Department issued a general circular respect- 
ing the practice under motions for review, and aft^er referring to Allen 
r. Price, fmpra, it was said : 

III cases where an entry is canceled by reason of contest, the land covered by the 
same is to be reserved from entry for the period of thirty days from due notice to 
the cont«*stant of his preference right of entry thereof. Should an application to 
enter the land be presented by a stranger to the record, you will receive and hold 
the same in abeyance to await the 2iction of the contestant, and should such con- 
testant fail to exercise his right, such application or applications must be disposed 
of in accordance with the law and rulings of the Department. ShouM a waiver of 
the preference right of entry duly executed by the contestant be filed, the tract will 
at onc<* become subject to entry. (See 16 L. D., 334.) 

The Henry Gauger case was referred to in McDonald et ah r. Hart- 
man et al,^ 19 L. D., 547, 557. 

Allen r. Price has been referred to and followed in the following 
cases: Severy r. Bickford (on review), 16 L. D., 135; Newell r. Pete- 
fish, 20 L. D., 233; Mayers r. Dyer, 21 L. D., 187, and McCormack v. 
Violet, lb., 451. 

The several points decided by the Gauger and Allen r. Price cases 
mav be summarized as follows : 

The Gauger case held, (1) That an application to enter made during 
the time allowed for an appeal from a judgment of your office holding 
an entry for cancellation, should be received subject to the right of 
appeal but not made of record until the rights of the former entryman 
are finally determiped. (2) That an application to enter, made before the 
time allowed the successful contestant to assert his preference right 
has expired, should be allowed subject to such preference right. (3) 
On the subsequent assertion of the preference right by the contestant 
within the time prescribed, notice thereof should be given the inter- 
vening entryman to show cause why his entry should not be canceled. 

Allen r. Price held, (1) That on the successful termination of a con- 
test and the cancellation of an entry the land embraced in such entry 
should be reserved for the benefit of the contestant during the period 
allowed by law for the exercise of his preferred right of entry. (2) If 
an application to enter is presented by a stranger to the record, during 



86 DECISIONS RELATING TO THE PUBLIC LANDS. 

the time allowed the successful contestant to make entry of tlie tract 
involved, such application should not be acted on by the register and 
receiver when presented, but should be held in abeyance to await the 
action of the contestant. (3) If a successful contestant files a duly 
executed waiver of his preference right, the tract involved will there- 
after be subject to entry. 

This summary shows beyond any question that there is, in soii.e par- 
ticulars, at least, an irreconcilable conflict between these cases. To 
the extent of such conflict, one or the other of them must be overruled. 
From a careful examination of the subject I am convinced that the 
doctrine announced in Allen v. Price furnishes the better practice and 
it will be followed. The case of Henry Ganger, 10 L. D., 221, is there- 
fore overruled. All other cases following it, in so far as they may be 
in conflict with the views herein expressed, are also hereby overruled. 

In the case at bar, Huft' made his application to enter while Moore's 
entry was still in existence, and continued to exist for over a year and 
a half thereafter. His application was rejected, and he appealed. 
The question is, whether he acquired any rights under his application 
under the law, or rulings of the Department. This question can best 
be determined by reference to the rulings of the Department and 
courts. 

The Department has repeatedly held that an entry segregates the 
land covered thereby, and so long as such entry exists, it precludes 
any other disposition of the land. Whitney r. Maxwell, 2 L. D., 98; 
Schrotberger v. Arnold, 6 L. D., 425; Allen r. Curtius, 7 L. D., 444; 
JamesA. Forward, 8 L. D., 528; Russell r. Gerold, 10 L.D., 18; Swims r. 
Ward, 13 L. D., 686; Hanscom r. Sines, et al,^ 15 L. D., 27; Faulkner 
V. Miller, 16 L. D., 130. 

The courts have held the same view. Witherspoon t?. Duncan, 4 
Wall., 210; Hastings and Dakota R. R. Co. t\ Whitney, 132 U. S., 357; 
Starr v. Burk, 133 U. S., 541, 548. 

If the land covered by a subsisting entry is not subject to dispo- 
sition, it follows that an application to enter such land confers no 
rights whatever upon the applicant. If such application shall be 
rejected, and an appeal be taken from such action, it is not a pending 
application that will attach on the cancellation of the previous entry, 
for the appeal can not operate to create any right not secured by the 
application itself. See Patrick Kelley, 11 L. D., 326; Ooodale r. Olney 
(on review), 13 L. D., 498; Maggie Laird, Id., 502; Holmes v. Hockett, 
14 L. D., 127; Swanson r. Simmons, 16 L, D., 44; Mills v. Daly, 17 L. D., 
345; Cook v. Villa (on review), 19 L. D., 442; Walker r. Snider (on 
review). Id., 467; Gallagher r. Jackson. 20 L. D., 389; McMichael r. 
Murphy et al, (on review), Id., 535 ; McCreary r. Wert et al., 21 L. D., 145. 

In view of these authorities, it is held that Huff did not acquire any 
rights, either by his application to enter, or by his appeal. 

The procedure in such eases ought to be: 

1. That no application to make entry will be received by the local 



DECISIONS RELATING TO THE PUBLIC LANDS. 87 

officers during the time allowed for appeal from a jndgmeut of cancel- 
lation of an entry 3 but in all such cases the land involved will not be 
subject to entry or application to enter until the rights of the entryman 
have been finally determined until which time no other rights, inchoate 
or otherwise, can attach. 

2. If during the time accorded a successful contestant to make entry 
of the land involved an application or applications to enter should be 
made by a stranger or strangers to the record, such application or 
applications will be received and the time of presentation noted thereon, 
but held to await the action of the contestant, and should such con- 
testiint fail to exercise his preference right, or duly waive it, then such 
application or applications must be acted upon and disposed of in 
accordance with law and the rulings of the Department. 

The only remaining question to be determined is, whether Cowles 
acquired any rights under his application to enter, dated December 
20, 1893. 

At the time Cowles made his application to enter, Moore's relinquish- 
ment was filed in the local land office. When said relinquishment was 
filed, it took effect at once, so far as releasing the land covered by it 
from the existing entry was concerned. McGall v. Molnar, 2 L. D., 265; 
David J. Davis, 7 L. D., 560, 561 ; Dunn r. Shepherd et aZ., 10 L. D., 139. 

Under Allen r. Price, and the instruction of March 30, 1893, it was 
the duty of the local officers to have held Gowles's application during 
the period allowed a successful contestant to exercise his preference 
right of en try ^ therefore the action of the local officers in rejecting his 
application and your office in affirming the judgment was erroneous. 

Brady, the successful contestant, stated in his affidavit, dated Feb- 
ruary 7, 1894, hereinbefore referred to, that he "is not now a qualified 
entryman • . . and that he can not enter said tract," and that in 
consideration of Huff paying the expenses of the contest, "affiant 
agreed to assert no claim to said tract." 

If these facts had been before the register and receiver at the time 
Cowles made his application to enter, his entry should have been 
allowed under Allen v. Price, and the departmental instructions there- 
under, for they show: (1) that he was disqualified to make entry of the 
tract, and therefore could not lawfully exercise the preference right 
accorded a successful contestant; (2) that he relinquished his prefer- 
ence right. In such cases the land is subject to entry by the first legal 
applicant. In the case at bar, Cowles was such applicant. 

Huff's entry was erroneously allowed by your office decision. 

Your office decision appealed from is accordingly reversed. Huff's 
entry will be canceled, and Cowles will be allowed to make entry of the 
tract under his application of December 26, 1893. 

The conclusion reached in the departmental decision of October 31, 
1895, rendered in this case, is adhered to, but inasmuch as said decision 
did not overrule the Ganger case, supray and give the reasons therefor, 
it is hereby recalled, and this decision substituted therelor. 



S8 DECISIONS RELATING TO THE PUBLIC LANDS. 

TIMBER IiAXI>— APPLJCATION - PROTEST-PRACTICE. 

Harris r. Belknap. 

Prior to the issuance of final certificate under a timber land application the local 
office has full jurisdiction to order a hearing on a protest, or adverse claim, filed 
against such application. 

An appeal will not lie from an interlocutory order of the local office made during the 
progress of a hearing, and if the party adversely affected thereby withdraws from 
the case, he is not entitled to have it remanded for further hearing even though 
it may appear that the local office erred in its ruling. 

Secretary Francis to the Commissuyner of the General Land Office, Jan- 
(I. H. L.) mry 30, m)7. (R. W. H.) 

It appears from the record iu this case that, on June 6, 1894, William 
H. Belknap filed his sworn statement with his application to purchase 
the laud iu question under the act of June 3, 1878, and notice by pub- 
lication was given that his proof would be offered September 15, 1894. 
September 14, 1894, Arthur Corning as agent for Wm. H. Carpenter, 
filed a protest against the acceptance of Belknap-s final proof, all^^ging 
that the land contains valuable deposits of coal asid is chiefiy valuable 
therefor, and x)roposing, as such agent, to purchase the same under the 
coal land act. On the following day, to wit, September 15, 1894, James 
K. Nesbit filed a protest of similar purport — claiming that he had posses- 
sion of the tract under the coal land law, and that Belku^ap was con- 
spiring to secure the land for the benefit of others. On the same day 
Belknap offered his proof, which was suspended by the local office 
subject to action on said protests. 

October 22, 1894, Burdette R. Harris made application to enter the 
land as a homestead, at the same time filing a protest against the 
allowance of Belknap's proof, alleging that the tract is practically 
devoid of timber and only valuable for agriculture. 

A hearing was ordered for December 5, 1894, at which Harris and 
Belknap appeared in person and by counsel — Carpenter and Nesbit 
making default. Harris made affidavit asking for a continuance of the 
case for thirty days because of the absence of a material witness, one 
Wm. Yantis, whose attendance at the hearing he had used due dili- 
gence to procure, but without success. Upon Belknap's agreement, 
however, to admit that the witness would, if present, testify to the 
statement set out in the application for continuance, the local office, 
under liule 22, denied the motion and proceeded with the hearing. 

Harris did not support his protest by his own testimony, and intro- 
duced only one witness, who testified that there were not more than 
seven or eight acres of green timber on the forty acres in dispute, and 
that it was all in a "burn". Be made no other examination of the soil 
€)xcei>t "in digginer for coal along the hill side near the land." To the 



DECISIONS RELATING TO THE PUBLIC LANDS. 89 

question, on cross examination: ''Did you find any coal!" the witness 
answered: "Yes, I did, I found coal on tbe south line that we run." 
A' this stage the protestant rested, and the attorney for timber claim- 
ant moved the dismissal of the protest on the ground that a prima fade 
case had not been shown. 
The register and receiver ruled that 

if the ease proceeds tbe costs will be taxed to tbe protestaut, and if be does not 
see fit to proceed with tbe co^e and pay tbe costs, and tbe timber land claimant 
wants to introduce bis evidence and is willing; to pay his own costs it makes no 
hardship on the protestant, and the case will proceed. 

The homestead claimant (Harris) objected to any further proceeding 
in the ca^e on the ground that as the timber land claimant (Belknap) 
had interposed a demurrer, and said demurrer had been sustained, 
that the case was closed so far as the jurisdiction of the local office was 
concerned ; that its decision sustaining the demurrer was equivalent to 
a decision on the merits, and that no further evidence could be consid- 
ered, or proceedings had, until the protestant could secure a ruling of 
the Commissioner upon the question of costs. 

The local office adhered to its ruling, and Belknap thereupon pro- 
tested against paying any of the costs, and moved that in the event of 
the homestead claimant persisting in his refusal to pay the costs that 
the whole proceeding be dismissed, and his timber land entry be made 
a matter of record. 

The case was proceeded with, Belknap and his witnesses giving in 
their testimony, and the protestant declining to take farther part in the 
hearing. 

The local office considered the case on its merits, found that the land 
is chiefly valuable for its timber, and that it is timber land in the mean- 
ing and intent of the act of June 3, 1878, and recommended that Harris' 
homestead application be rejected, his protest dismissed, and that Bel- 
knap be permitted to make payment for and perfect his title to the land. 

Toar office held that there was nothing in the record to show that 
Harris gave notice of an appeal from the ruling of the local office in 
the matter of costs, but as it was an interlocutory order, it was not of 
itself the subject of an appeal, and furthermore there was nothing to 
eliow that Harris was denied the privilege of cross-examining the 
defendant's witnesses, as he had absented himself voluntarily. 

Yon further held that it was not error under the circumstances to 
allow Belknap to submit his testimony and to decide the case on its 
merits. You accordingly affirmed the decision of the local office dismiss- 
ing Harris' protest, and holding the sworn statement and application of 
Belknap subject to final action in the case. 

Harris' appeal to the Department makes but one assignment of error, 
to wit: 

'^ Error not to have remanded the case for further hearing/- 
• Paragraphs 14 and 15, page 45, G. L. O. Circular (1895), prescribes 



90 DECISIOISS RELATING TO THE PUBLIC LANDS. 

tbe mode of procedure under the timber and stone act of June 3, 1878, 
as follows : 

14. When au adverse claim, or any protest against accepting proof or allowing an 
entry, is filed before final certificate has been issued, the register and receiver will 
at once order a hearing, and will allow no entry until after their written determina- 
tion npon said hearing has been rendered. They will report their final action in aU 
protest and contest cai»cs and transmit the papers to this office. 

15. After certificate has been issued, contest, applications, and protests will be 
submitted to this office as in other cases of contest after final entry. 

It will thus be seen that the jurisdiction of the local office is complete 
as to all matters arising at hearings under the timber and stone act 
until certificate has been issued, after which, contest, applications, and 
protests are to be submitted to your office as in other cases of contest 
after final entry. 

The ruling of the local office upon the question of costs being made 
in the progress of the hearing, was interlocutory, and not subject to 
appeal, it matters not whether the ruling was erroneous or not. No 
right of the protestant was denied. Its exercise was only coupled with 
the condition that he should pay all the costs as in hearings under Rule 
64. This he refused to do and withdrew from the case, after giving 
notice of appeal. It would seem, therefore, if his interests were in any 
wise prejudiced, that it was the result of his own premature action. 

While your office did not concur in the ruling of the local office that 
the protestant should pay all the costs of the hearing as in regular 
contest cases under the act of May 14, 1880, it was held not to be error 
under the circumstances to allow Belknap to submit his testimony, and 
to decide the case ui)on its merits, inasmuch as there was <^ nothing in 
the record to indicate that Harris was denied the privilege of cross- 
examining the witness introduced by Belknap," and * in his brief did 
not claim that he was denied this privilege, but stated, after it was 
ruled that he should pay all the costs, he ^' gave notice of appeal and 
did not appear further in the case," clearly showing that he absented 
himself voluntarily.' 

In deciding that the hearing should have been held under Rule 55, 
instead of Rule 54, you have afforded Harris the only relief of which 
the case admits. It was entirely within the jurisdiction of your office 
for decision upon its merits as it came from the local office, and there 
was no error in your refusal to remand the case for further hearing. 

Your office decision is therefore affirmed. 



DECISIONS RELATING TO THE PUBLIC LANDS. 91 

ADDITIONAL HOMESTEAD— ACT OF FEBRUARY lO, 18»4. 

Elbert Hurst. 

The special right to enter additional lands conferred by the act of February 10, 1894, 
when snch additional lands become sabject to entry, is defeated by a prior selec- 
iion of the Innd as school indemnity under the provisions of the act of March 
2, 1895. 

Secretary Franda to the Commissumer of the* General Land Office^ Jan- 
(L H. L.) tiary 30, 1897. (C. J. G.) 

Elbert Hurst has appealed from year office decisiou of September 20, 
1895y sustainiag the action of the local office in rejecting his homestead 
application made July 3, 1895, for the N. J of the SE. J, Sec. 8, T. 4 N,, 
E. 3 E., Indian Meridian, Guthrie land district, Oklahoma. 

The basis for said action was that the land is embraced in Oklahoma 
clear list No. 6, school indemnity lauds, approved May 17, 1895, aud 
therefore not subject to homestead entry. 

On October 22, 1891, the appellant made original homestead entry 
for that part of the NE. i of Sec. 8, T. 14 N., R. 2 E., lying north or on 
the left bank of the Deep Fork river. He claims the right to make 
homestead entry of the land in question by virtue of the act of Con- 
gress approved February 10, 1894 (28 Stat., 37). That act provides as 
follows: 

That every homestead settler on the public lands on the left bank of the Deep 
Fork river in the former Iowa reservation, in the Territory of Oklahoma, who 
entered less than one hundred and sixty acres of land, may enter, under the home- 
stead laws, other lands at^^oinlng the lands embraced in his original entry when such 
additional lands become subject to entry, which additional entry shall not, with the 
lands originally entered, exceed in the aggregate one hundred and sixty acres. 

The record shows that the land in question is situated on the right 
bank of the Deep Fork river, and was included in the Kickapoo reser- 
vation. The act of Congress approved Mar<;h 2, 1895 (28 Stat., 899), 
gave the Territory of Oklahoma the right to select school indemnity 
lands in this reservation. That act provides as follows : 

That any State or Territory entitled to indemnity school lauds or entitled to select 
lands for edncational purposes under existing law may select such lands within 
the boundaries of any Indian reservation in such State or Territory from the sur- 
pins lands thereof, purchased by the United States after allotments have been made 
to the Indians of such reservation, and prior to the opening of such reservation to 
settlement. 

The instructions of May 18, 1895 (20 L. D., 470), issued in connection 
with the proclamation of the President opening the Kickapoo Indian 
lands to settlement, contains this language: 

It mast be remembered that, while the parties coming under "the provisions of the 
said act of February 10, 1894, are permitted the privilege of making an additional 
entrjy based on the original entry theretofore made by them, there is no provision 
permitting the reservation of any particular tracts for their benefit, and, therefore, 
their claims to any lands under snid statute will rest upon a priority of initiation as 
iu other cases. 



92 DECISIONS BELATING TO THE PUBLIC LANDS. 

The proclamation of the President opening the KickaixK) Reserva- 
tion to settlement (20 L. I)., 473), contains this language: 

The lands to be so opened to settlement are for greater convenience particularly 
described in the accompanying schedule, entitled *'Schedtile of lands within the 
Kickapoo Reservatiqn, Oklahoma Territory, to be opened to settlement by procla- 
mation of the President," but notice is hereby given that should any of the lands 
described in the accompanying schedule be properly selected by the Territory of 
Oklahoma under and in accordance with the provisions of said act of Congress 
approved March second, eighteen hundred and ninety-five, prior to the time herein 
fixed for the opening of said lands to settlement such tracts will not be subject to 
settlement or entry. 

As previously shown, the act of February 10, 1894, gave settlers on 
the left bank of the Deep Fork river, who entered less than one 
hundred and sixty acres, the privilege of an additional entry " when 
such additional lands become subject to entry." The act of March 2, 
1895, gave the Territory of Oklahoma the right to select indemnity 
school lands in the Kickapoo reservation prior to the opening of such 
reservation to settlement. The date of the President's proclamation 
opening said reservation to settlement was May 18, 1895. The date of 
approval by the Department of the selection of the laud in question by 
the Territory of Oklahoma ns school indemnity, was May 17, 1895. 
The date of appellant's application is July 3, 1895, and was properly 
rejected for the reason that under the statute the right of the Territory 
was initiated prior to that of the appellant. 

Your office decision is hereby affirmed. 



- OKXtAHOMA LAXDS— QFALIFICATIOXS OF SETTL.ER-SETTL.EME T. 

Hensley r. Waneb. 

The fact that at the date of the act opening the Pottawattomie country to settlement 
and entry, a person is then within said country and occupying land under an 
unapproved lease, will not in itself xlisqnalify him as a claimant for lands so 
opened for settlement; nor will his subsequent presence in such territory operate 
as a disqualification where he acquires no additional information as to the land 
settled upon, and in obedience to the President's proclamation he leaves said 
territory and remains outside the boundary until the hour of opening. 

A settler on lands opened to disposition by said act is not disqualified by making 
the "run " on the day of opening from an adjacent Indian reservation. 

The conditions attendant upon opening lands to settlement in Oklahoma re<|uire the 
recognition of extremely slight acts of settlement in determining priorities 
between adverse claimants. 

Secretary Francis to the Commissioner of the General Land Office^ Jan 
(I. H. L.) nary 30, 1897. (J. L. McC.) 

I have considered the case of Elbert S. Hensley r. John Waner, 
involving tlie'homestead entry made by the latter for the ITW. \ of Sec. 
27, T. 12 N., R. 1 E., Oklahoma land district, Oklahoma Territory. 

The land was embraced in the former Pottawattomie Indian reserva- 



DECISIONS RELATING TO THE PUBLIC LANDS. 93 

tion, but was purchased from that tribe, aud by act of March 3, 1891, 
directed to be opened to settlement and entry. An executive procla- 
mation to carry said act into eff'ect was issued September 18, 1891; and 
the land was so opened to settlement aud entry on September 22, 1891. 
The particular tract in controversy had at some previous time been the 
allotment of an Indian named '^ High," but said allotment had been 
canceled, and the land restored to the public domain. 

John Waner made entry of the tract in controversy on September 26, 
1891. 

On November 14, 1891, Elbert S. Hensley applied to make homestead 
entry of the tract; but his application was rejected because of the prior 
entry of Waner. He alleged settlement prior to entry or settlementby 
Waner, whereupon a hearing was ordered and had, commencing July 
25, and continuing until August 22, 1894. 

From the voluminous testimony taken the local officers found in favor 
of Waner. 

Hensley appealed to your office; which, on October 12, 1896, reversed 
the decision of the local officers, and held Waner's entry subject to 
Hensley's superior right. 

Waner has api)ealed to the Department. 

In the arguments filed upon appeal, a number of questions are pre- 
sented, to which no reference is made either in the decision of the 
local officers or of your office, some of which are new and deserving of 
consideration. 

Hensley had resided and leased farms from different parties in the 
Indian Territory for years prior to the passage of the act of March 3, 
1891; first in the Chickasaw country; afterwards, upon invitation of 
his brother, he came to the Pottawattomie country, and the two took a 
lease jointly of the allotment of one Daniels. This was some time in 
the last week of 1890. From that date until he went out of the terri- 
tory preparatory to *' making the run" back into it (with one exception, 
to be noted hereafter), Hensley, with his wife and five children, occu- 
pied said Daniels allotment. 

The Department has held that 

<me wbo is rightfully within the territory during the prohibited period, but goes 
outside prior to the hour of opening, aud gains no advantage over others by his 
presence in the territory during the prohibited period, is not by such presence dis- 
qualified as an entryman (Metz r. Seely, syllabus, 21 L. D., 148). 

But counsel for Waner contend that the above ruling can not apply 
to Hensley, inasmuch as he was wrongfully within the territory; that 
the leasing of an allotment from a Pottawattomie Indian was in viola- 
tion of law; in support of which they copy a letter from the then act- 
ing Commissioner of Indian Affairs to one George L. Young, at Sacred 
Heart, O. T., dated April 2, 1891, which says: 

In reply to your communication dated March 16, 1891, you are advised that the 
leasing of lands by members of the Citizen band of Pottawattomics 'is illegal and 



94 BECI8IOKS RELATING TO THE PUBLIC LANDS. 

void, and that parties xvithin the reservation under such pretended leases liave no 
rights whatever on the reservation. The allotments have not been approved, and 
the allottees as yet have no title to the land. Prior to the passage of the act of 
February 28, 1891, an allottee or patentee had no right to lease his land for any 
purpose. 

It may be true that there was no departmental approval of the lease 
from the Indian, Daniels, to Hensley. Bat if there were not, what 
penalty could properly and legally be inflicted upou Hensley f Simply 
removal from such reservation, as an intruder. But if the passage of 
the act found within the limits of the territory opened to settlement by 
it, a person residing, or farming, or engaged in business, without the 
written permission of the Department, does that fact forever disqualify 
such person irom acquiring title to land within such territory f I find 
no statute imposing such penalty; and it appears to me improper, 
unjust, and unwarranted to give so broad a construction to the probi. 
bition contained in the act in question. The Department in its recent 
decision in the case of Brady v. Williams (although that case is not in 
all respects the exact parallel of the one here under consideration), enun- 
ciates a ruling equally ap])licable to Hensley — to- wit: that even if a 
settler on an Indian reservation, under a lease that had not received 
the affirmative sanction of the Department, <^were guilty of a crime 
either against the United States or the Indians, he would not" thereby 
<< be disqualified from availing himself of the right to make a homestead 
entry '^ (23 L. D., 633-537). 

In my opinion, therefore, the fact that at the date of the passage of 
the act of March 3, 1891, Hensley was found in the Pottawattomie 
country, occupying land under a lease that had not been approved by 
this Department, would not^ per se^ disqualify him from acquiring land 
in the territory then and thereby opened to settlement and entry. 

Counsel for Waner contend that, whether or not Hensley was right- 
fully in the country prior to March 3, 1891, he certainly was not after 
that date — in view of the fact that the prohibition against going into 
the territory began to run at the date of the passage of the law. Fur- 
thermore, that Hensley was ordered out of the territory, and left it — 
but returned, without legal authority to do so. In support of this con- 
tention they introduce a copy of a letter of instructions from Mr. Secre- 
tary Noble to the Commissioner of Indian Affairs, dated March 30, 1891 
(twenty-seven days after the passage of the act). That letter said (inter 
alia) : 

It is reported by the governor of Oklahoma that large numbers of persons are 
invading the recently purchased laud from the Sac and Fox, Cheyenne aud Arapa- 
hoes, and others, with a view to gaining an undue advantage in the selection of 
homesteads, etc. ; and I have to call your attention to the necessity of excluding 
them by whatever degree of force it may be necessary to obtain iVom the army for 
that purpose .... Not only should those intruding be peremptorily removed, but 
all private stakes or monuments, or other indications of possession that they may 
endeavor to establish should also be destroyed. 



DECISIONS RELATING TO THE PUBLIC LANDS. 95 

The Commissioner of Indian Affairs issued instructions to Indian 
Agents in the vicinity of the lands above named, directing them to 
carry out the above order. 

But the question arises as to whether the above order was aimed at 
Hensley, or persons in his position. It would not on its face appear 
to do so, unless he was "invading" the land "with a view to gaining 
an undue advantage in the selection of homesteads, etc." — which is a 
question that will be inquired into hereafter; and it is not alleged by 
anybody that he was establishing "private stakes, or monuments, or 
other indications of possession." 

Whether this order was intended for him or not, Ilensley in some 
way became acquainted with the substance thereof, and did move out, 
with his family; but about a fortnight afterward returned. 

Counsel for Waner contend that he returned without authority. 

When Hensley lefb the territory he went out into what was commonly 
known as "Old Oklahoma," that had been opened to settlement and 
entry in 1889, and camped upon the "ranch" of a friend named Powers, 
At the hearing Powers testified : 

Mr. Hensley camped on my place for abont two weeks ; lie had been ordered out 
of the Pottawattomie country, be said; be then went back to finish up bis crops; it 
was the general understanding among the people that they hnd received permission 
to retnm and take care of their crops. 

The testimony of J. W. Daniels, from whom Hensley leased the allot- 
ment, will throw some further light upon this branch of the case: 

As I understand the matter, there was an order issued notifying all white people 
that wanted homes there, to leave the reservation ; that was about tbe last of ^lay 
or the first of June — I wouldn't be authentic In regard to tbe time. I remember well 
that Hensley did move his family and himself out of said reservation. The Potta- 
wattomie Indians made complaint to the Department that they would be serlonsly 
damaged by removing the renters from said Indian lands. John Andersoju, and 
others, told me that the order had been rescinded, and that the renters could return 
and cultivate their crops. It was a question that concerned me considerable; and 
Mr. Ontcelt told me that an order would be made that they could go back, and then 
they would be told when to go out again. 

George W. Outcelt, a merchant of Choctaw City, testified : 

A number of persons holding leases had moved out of the Pottawattomie country 
and were camped at Choctaw City and around there. I talked with Judge Harvey 
in regard to the matter, and we both thought it was a great inconvenience and 
wrong to the settlers to force them to leave their lands and crops. I wrote to Col. 
Patrick, the Indian Agent, in reference to the matter, and told him the situation ; 
and he told me that the order was not intended to compel tenanU to leave the Potta- 
wattomie country or their homes, and to tell them to go back. I told Mr. Hensley, 
and a number of others, that Col. Patrick had instructed me to tell them tbev could 

go back to their homes Col. Patrick told me this personally, at my 

store; he explained that the order of expulsion was intended only for three or four 
persons, who had made themselves objectionable, and was given to an Indian 
policeman, who, not understanding the matter, had served the order on all parties. 
He said that his understanding was that, before the opening, all parties would have 
sufficient notice to enable them to get out in time. 



96 DECISIONS RELATING TO THE PUBLIC LANDS. 

On September 18, 1891 — four days before the land in controversy was 
opened to settlement — the President issued the following proclamation 
(27 Stat., page 992, last six lines) : 

Notice, moreover, is hereby given that it is by law enacted that until said lands 
are opened to settlement by proclamation, no person shall be permitted to enter 
npon and occnpy the same; and no person violating this provision shall be permitted 
to enter any said lands, or acquire any right thereto. 

This proclamation came to witness Daniels' knowledge on the day of 
its date — he being at the time in Oklahoma City. Daniels expbiins 
how it was brought to Hensley's knowledge: 

I was in Oklahoma City. Knowing Mr. Hensley to be a very poor man, and culU- 
yating my place under a leacte, I was anxious to see him get a home for himself and 
family. Biding home some time between 9 and 10 o'clock at night, accompanied by 
John Clinton, I remarked to Clinton tliat I had given the Hensley Brothers a lease 
of said place, and that as the president had declared said reservation opened so very 
unexpectedly, and being fully satisfied that said brothers had not come Into posaeS' 
slon of the fact, I thought it would be nothiug more than right that wo shoald 
drive around and notify them that the proclamation had been made. . . . He 
(Hensley), being a poor man, got my horses, and moved out of there about 
midnight. 

Hensley and his family went again to the ranch of his friend Powers, 
on the border of <^01d Oklahoma,-^' and there remained until the morn- 
ing of the day of the opening. 

The local officers decided against Hensley on two points, one of 
which was: 

We can not dispute the conclusion, from all the evidence, that Hensley knew this 
tract in dispute, and that, in a general way at least, he had an advantage over other 
homeseekers by reason of his stay in this reservation. 

The Department has frequently held, as expressed in the syllabus to 
the decision in the case of Monroe et al. r, Taylor (21 L. D,, 284) : 

Knowledge of lands within the territory, acquired by presence therein prior to 
the passage of the act, .... can not disqualify a settler who subsequently com- 
plies with the prohibitive terms of said act. 

In view of this ruling, the mere fact that a person, ^^ in a general way," 
some time or other, learned something about a tract of land, is not 
sufficient reason for holding him disqualified. It must apjiear that such 
information was acquired subsequently to the passage of the act. 

Upon this point the decision of your office is specific: . 

It does not appear that Hensley gained any advantage by his presence in the ter- 
ritory during the prohibited period. It is true he resided within a mile and a half 
of the land he now seeks to enter. It is also true that he had abundant opportunity 
to gain a knowledge of the land before the date of the act opening the country to 
settlement, March 3, 1891 ; and his residence within the country after that period 
did not, I think, give him any additional information. 

An attempt was made at the hearing to show that Hensley had an 
opportunity to obtain <^ additional information.'' He worked one day, 
in the summer of 1891, for a man named Fausler, hauling to market 



DECISIONS RELATING TO THE PUBLIC LANDS. 97 

some hay tliat Fanslcr had cnt apon the tract iu controversy, and 
stacked (with other hay) near his (Fansler's) hoase. Fansler testifies 
that the land in controversy was " in plain view " from his honse, and 
that " there was nothing to prevent him " (Hensley) " from looking at 
it." This is the sum total of the proof tending to show that Hensley 
learned an3rthing additional regarding the tract after March 3, 1891. 

Counsel for Waner si>ecifies as one thing that Hensley learned while 
upon the reservation during the prohibited period, that the allotment 
for the land in controversy was fraudulent. But regarding this Hens- 
ley testifies: 

The day before the opening, I learned, on the line there, that the soldiers had 
declarefl that what was oaUed the " High allotment '' was a frand, and that it was 
then opened up as public domain. 

Inasmuch as Hensley, ^< the day before the opening," was not in the 
Pottawattomie country, but in the Old Oklahoma country, it appears 
that the information obtained by him that the allotment was a fraud, 
was received by him while outside the Pottawattomie reservation, 

I concur with your office in its finding that there is nothing in the 
testimony to indicate that Hensley gained any additional information 
regarding the land because of his presence in the territory after the 
passage of the act opening it to settlement and entry. 

On the morning of March 3, 1891, Hensley started from the point in 
*^01d Oklahoma," where he had been for three days camped upon the 
ranch of his friend Powers, and, going eastwardly, crossed the line 
into the Kickapoo Indian Eeservation. He traveled through this a 
distance of about twelve miles, until he reached a point on the north 
bank of the North Fork of the Canadian river, as near the land in 
controversy as he could get and yet be outside of the prohibited terri- 
tory. The question arises, does the fact that Heusley started from the 
Kickapoo country to make the run for the land in controversy, dis- 
qualify him from acquiring the land! 

Some suggestive light may be thrown upon this question by reference 
to the departmental decision in the case of Brady v. Williams (23 L. D., 
533, 9upra). That case arose upon the opening of the Cherokee Outlet, 
September 16, 1893. In that case the President's proclamation (August 
19, 1893,) contained a proviso for a strip of land one hundred feet in 
width along the outer boundary of the counti^ then opened, "open to 
occupancy in advance of the day and hour named for the opening of 
said country, by persons expecting and intending to make settlement" 
of said Cherokee lands. But this one-hundred-foot strip proviso in no 
way invalidates the argument regarding the right of an intending 
settler to start from the margin of an Indian reservation that had not 
yet been opened to settlement and entry. In that decision the Secre- 
tary said: 

It must be asnnmed that it was known to the President and the Secretary of the 
Interior, at the time the proclamation was promulgated, that the Indian reaervationa 
10671— vol. 24 7 



S8 DECISIONS RELATING TO THE PUBLIC LANDS. 

<l»f the Kansas, the Osages, the Poncas, and the Otoes and Missoarias, immediately 
joined the Ontlot on the east; yet there is n6 inhibition in the proclamation from 
.settlers entering from those reservations. 

In the case at bar, it must be assumed that the President and the 
'Secretary of the Interior knew that the Kickapoo Indian reservation 
immediately joined the Pottawattomie reservation on the north; yet 
4;here is no inhibition in the proclamation from settlers entering firom 
4;hat reservation. 

JLgain, the decision in the Brady- Williams C£tee says: 

The only theory upon whieh the Secretary of the Interior could possibly prerent 
persons from making the run from these Indian reservations was that, under the 
laws and treaties with the tribesy white people were not allowed therein, and were 
trespassers, and could be forcibly and summarily ejected aa such. But .... if 
they passed through the Indian reservations, and got on to the on%-hundred-foot 
•trip, and made the run from there in good faith, should they be deprived of their 
liomestead rights f I find myself unable to yield assent to such a proposition. If 
the settler were guilty of a crime against the United States, or the Indiana, he 
'would not be disqualified from availing himself of the right to make a homestead 
«ntry. 

In view of the above ruling in the Brady- Williams case, I must hold 
that in the case at bar the fact that Hensley started from the Kickapoo 
Indian reservation did not disqualify him from acquiring land in the 
former Pottawattomie reservation when it was opened to settlement 
.jbnd entry. 

Hensley does not deny that he had the High allotment in view when 
lie started from the Kickapoo country at noon of September 22, 1891 — 
baving that morning, while yet in the '* Old Pottawattomie'' country, 
learned from certain soldiers 'that said .allotment had been declared 
^auduleut and invalid, and the laud restored to the public domain. 
He does not deny, but acknowledges, that he sought a starting point as 
near said tract as possible, and yet be outside the prohibited territory. 
The route, after crossing the river (the Korth Fork of the Canadian) 
was steep and through timber for a short distance — about a quarter of 
a mile. The following is his own story of the run — omitting questions; 

The horse I rode was a good horse— fast ; he made the winning on the Oklahoma 
race track on the Fourth of July; I rode him just as fast as he could run; I got him 
lieaded in the direction and let him run; I lost my hat and blanket and one of my 
«tirrups ; the stirrup was torn off early in the race, by the horse running too close 
Against a tree; when I reached the claim I jumped off the horse; as quick as I got 
•off I saw parties coming from different directions; so I got back into the saddle and 
craved my flag over my head to the people coming in ; I thought they could see the 
Hag better with me on the horse than if I stood upon the ground. 

An attempt is made to show that Hensley must have started from 
-the Kickapoo line before noon, in order to reach the land in controversy 
before any of his competitors did. The principal reliance in support 
of this contention is the testimony of witness Ivy, who said of Hensley: 
^<He was iu there a minute or two before the other parties came^ I don't 
Jcnow whether they were slow or he was fast." But this testimony 



DECISIONS BELATINQ TO THE PUBLIC LAXD& 99 

mast be oonstraed in connection with that previoasly given by the 
same witness: 

A while before noon I had crossed the river into the Pottawattomie country; 
.... I wasn't on the line when the rest of the people made the run ; . . • . The 
first 1 8 i w of Hensley he was coming on a rnn a quarter of a mile west of the claim, 
or about that. 

So this witness, after all, does not say that Hensley was in the pro- 
hibited territory a minute or two before the other parties; bnt that he 
arrived "there" — where the witness was, nearly a mile inside the line — 
"a minute or two before the other parties came": which is precisely 
what Hensley himself asserts. After a careful examination of all the 
testimony bearing upon this branch of the question, I concur in the 
finding of the local officers, who say: 

Eridence "was also introduced tending to show that Hensley could not have 
leached the tract afc the time he said he did without having started from the Kicka- 
poo line prior to the noon hour. We do not think the evidence sufficient to find 
against him on that point. 

Upon the question of fact as to whether Hensley made settlement 
on the land prior to the date of Waner's entry, the local officers found: 

It is questionable whether the settlement he made, and his acts subsequent to his 
going on the land on September 22, are sufficient to hold in his favor on the ground 
of prior settlement. 

In considering this branch of the matter it should be remembered 
that 

the Gonditions attendant upon the opening of Oklahoma to settlement require the 
recognition of extremely slight initial acts of settlement in determining priorities 
between adverse claimants, if such primary acts are followed by residence within 
such time as clearly show good faith (Penwell v. Christian, syllabus, 23 L. D., 10). 

Hensley slept upon the ground the night after the opening — ^under a 
wagon-sheet. He testifies that the next day, September 23, he plowed 
about a quarter of an acre. He began the foundation of a house before 
the date of Waner's entry (September 26, supra)^ which he afterward 
finished, and he and his family moved into it about the first of Novem- 
ber, and has ever since resided there, with his wife and five children. 

Waner, the entryman, testifies that on the 24th of September, 1891, 
when he first saw the land, he did not notice any plowing or other 
improvements. To one (][uestion addressed to him on cross-examination 
he made a peculiarly evasive answer: 

Q. Did you not tell me in my office, here in Oklahoma City, in the fall of 1891, that 
you knew Mr. Hensley was the prior settler on this tract of land, but that he couldn't 
hold it, because he had been leasing land, and was a sooner f — ^A. I said he was a 
sooner, and that I believed I could prove every word of it at the trial. 

Witness Kay testified that about September 24, or 25 — he is positive 
that it was before the 26 (the date of Waner's entry) — he "saw a little 
patch of breaking done, and a log foundation laid." 



100 DECISIONS RELATING TO THE PUBLIC LANDS. 

The decision of your oflBce, appealed from, fiuds thutHensley, "being 
the prior settler on the land, had the superior right thereto." 

For the reasons hereinbefore given, I concur in the conclusion that 
Hensley acquired a superior right to the laud in controversyi and there- 
fore affirm said decision. 



DBS£BT LAKD £NTBT— AXIBNATIOir. 

Whbaton V. Wallace. 

An agreement hy » desert land entryman to convey title to the land alter tiie anb* 
mission of final proof, wlU not operate to defeat the entry, where said agreement 
was entered into after the passage of the amendatory act of March 3, 1891, whieh 
recognizes the right of assignment in the entryman, and where the initial entry 
appears to have been made in good faith. 

An agreement by a desert entryman, made subsequent to the initial entry, to convey 
title to the water supply after the submission of final proof , is not ground for 
cancellation, if it anpears that such agreement was afterwards, and prior to 
final proof, repudiated. 

Secretary Francis to the Commissioner of the General Land Office^ Jan- 
(I. H. L.) uary 30j 1897. (O. J. W.) 

The land involved herein is the 8W. J NB. J, S. J NW. J, K ^ SW. J 
and the SB. J SW. J section 26, and the NE. | NW. J and N W. J NE. J 
of section 35, T. 6 S., B. 32 E., M. D. M., Independence, California, land 
district. 

The records of your office show that on May 4, 1888, Bion Samuel 
Wallace made desert land entry for said tract, together with one hun- 
dred and twenty acres of adjoining land, and that on February 10, 1891, 
shortly before the expiration of the time within which he was by law 
required to make final proof, he relinquished his entry, whereupon on 
the same day Daniel T. Wallace made desert land entry for the tract 
now in controversy, being three hundred and twenty acres. 

September 13, 1893, the local officers issued notice of Wallace's inten- 
tion to offer final proof on October 28, 1893. At the appointed time 
Wallace appeared with Samuel B. Wallace and J. H. Jackson, two of 
the witnesses named in his final proof notice. At the same time 
appeared Wesley J. Wheaton, and filed an affidavit of protest against 
the final proof on the following grounds : 

1. That said Daniel T. Wallace does not own, nor have a clear right to the nse of 
BuflScient water to irrigate said laud and to keep it permanently irrigated. 

2. That the reclamation of said land has been effected by the use of water owned 
and controlled by another party, and not by the use of any water owned by this 
claimant. 

That the said entry of Daniel T. Wallace is fraudulent and illegal in this, to* wit: 
That at the time said entry was made the said claimant made and entered into a 
contract by which he agreed to obtain title to said lands for another party, and that 
said entry was made for speculative purposes and not made in good faith. 

3. That no water owned by this claimant has ever been oonduoted npon said land 
M required by law, or at all. 



DECISIONS RELA'IIXG TO THE PUBLIC LANDS. 101 

Tbereupoii cu motion of Daniel T. Wallace the case was continued 
until October 30, 1893. On that day Wallace filed an affidavit as 
follows: 

Dauiel T. Wallace being first daly sworn, deposes and says; My name is Daniel T. 
Wallace, and I am the identical person who on tbe lOth day of February, 1891, made 
desert land entry No. 619, at the U. S. Land Office at Independence, California, 
whieh said entry embraces the [description of land in controTersy]. 

That affiant never tiled or caused to be filed in the U. 8. Land Office at Independ- 
ence, Oal., any notice of his intention to make final proof of the reclamation of said 
tract of land; that affiant never signed any such notice nor caused the same to be 
signed, and that such notice bearing affiant's signature thereto was signed by some 
person other than affiant and without affiant's authority or i>ermi8sion. 

That affiant received no notice or information of the time or place of making final 
proof herein until the 20th day of October, 1893, on which day affiant received a 
letter from S. B. Wallace, dated and postmarked at Bishop, Cal., and addressed to 
affiant at " Midas, Nev./' which last mentioned place is more than two hundred miles 
from the U. S. Land Office at Independence, California; That affiant received said 
letter at his ranch, which is twenty-five miles further from said land office than the 
distance above stated. 

That affiant is not now prepared to make said final proof, nor to prove the recla- 
mation of said tract of land, and therefore prays that all proceedings heretofore 
had as to said final proof herein, be dismissed until such time as the same may be 
made after legal notice by affiant and claimant herein. 

Wlieaton filed an affidavit protesting against allowing the entryman 
to make proof at any other time, and alleging that Daniel T. Wallace 
and Samuel B. Wallace on May 31, 1893, entered into a written agree- 
ment, by the terms of which Daniel T. Wallace was to make final proof 
and receive final certificate for the benefit of Samuel B. Wallace. 

Tbe affidavit was accompanied by a copy of the alleged agreement. 

Wheaton also on the same day, but at different hours, filed two affi- 
davits executed that day by Samuel B. Wallace. 

In the first he states that he was the authorized agent of Daniel T. 
Wallace in Inyo cottnty. That S. B. Wallace and D. T. Wallace 
entered into an agreement by which S. B. Wallace was authorized to 
do all necessary things preparatory for the submission of final proof 
for the lands embraced in D. E. No. 619, so that D. T. Wallace could 
come from his home in Nevada and make final proof without delay. 
That the copy of the agreement attached to the affidavit of Wesley J. 
Wheaton is a correct copy of the original agreement. That at the 
instance of D. T. Wallace said S. B. Wallace caused notice of said 
final proof to be published, said proof to be submitted on October 28, 
1893. That D. T. Wallace appeared with his witnesses at the time 
named, but when confronted with a protest refused to proceed with his 
final proof. 

In the second affidavit he states that on said 28th day of October, 
1893, D. T. Wallace did not even have the right to the use of sufficient 
water to irrigate said land, and does not now own or have such water 
or water-right, and that the water conducted upon the land belonged 
to affiant. That after the water had been run upon the premises. 



I 



102 DECISIONS RELATING TO THE PUBLIC LANDS. 

affiant transferred to said Daniel certain stock in the Owens Biver 
Canal Company, and that said Duniel T. Wallace gave him bond and 
security for the return of said stock, after making his final proof. 
The following letter in reference to the agreement is in evidence: 

Austin, Nbv., September the 18th, 1S9S. 
Mr. Biox Wallace, BUhop. 

Sir: I have been waiting for some time expecting to hear from yon in regard to 
proving up on that laud. I am ready at any time to come down and do my part 
towards it, and would like to know whether you have got the land in shape so that 
it can be proved np on or not, and what yon intend to do in regard to it. Yon kno^r 
that the agreement was that it should be ready in August for me to do my share. 
Now, sir, I either want you to be ready soon for me to prove up on it, or else send me 
part of the money that is coming to me on it, so that I will know that you iuteud to 
keep your agreement with me in regard to it. Now let me heiir from you in regard 
to it soon, for If I don't I shall have to come down there and see what I can do in 
regard to it mysel£ . 

Yours in haste, (Signed) D. T. Wallack. 

Wheaton also on October 30, 1893, filed an nncoi roborated affidavit 
of contest against the entry, alleging on information and belief 

that the said Daniel T. Wallace at or before the date of said filing upon said litndt 
made and entered into an agreement for the sale of said lands as soon as he obtained 
patent therefor, and that said entry was not made in good faith bnt was made and 
is now held for speculative purposes. 

The local officers on November 11, 1893, granted the entryman's 
request to dismiss the proceedings in regard to the submission of final 
proof, and dismissed the protest on the holding that the entryman may 
offer final proof at any time within the lifetime of the entry. Wheaton 
appealed from said decision to your office. 

During the pendency of the appeal the entryman, on December 20, 
1893, gave notice of intention to make final proof, whereupon the local 
officers set February 5, 1894, as the date for receiving proof. At the 
appointed time the entryman appeared and submitted his proof, con- 
sisting of the testimony of himself and John Schober and William 6. 
Dixon, two of the witnesses named in his notice to make proof, and the 
certificate of said William G. Dixon, as secretary of said Owens River 
Canal Company, to the effect that the entryman is the owner of sixteen 
shares of the capital stock of the Owens River Canal Company, enti- 
tling him to the use of one hundred and sixty inches of water measured 
under a four inch pressure from the canal of said company. Wheaton 
also appeared and protested against the reception of the final proof, 
but did not cross-examine the entryman and his witnesses, although he 
was advised by the local officers of his right of cross-examination* 
Wallace offered to make payment for the land, but the local officers 
refused to receive the money, and on the same day reported the facts 
to your office, stating that they will hold the final proof to await the 
disposition of contestant's appeal from their office decision of ITovember 
11, 1893, dismissing his former protest, and also to await the determi- 






DECISIONS RELATING TO THE PUBLIC LANDS. 10$ 

nation of the contest, slioald a bearing be ordered on the contest affi-' 
davit filed by Wheaton, October 30, 1893. April 21, 1894, your office 
considered Wheatuu's appeal^ and affirmed the decision of the local 
officers dismissing his protest, and also affirmed their action of Febra* 
ary 5, 1894, holding the entryman's final proof subject to the contest 
proceedings. No comment was made in said decision on Wheaton'» 
failure to cross examine the entrymau and his final proof witnesses and 
to folly present bis case at the time of the submission of the final proof. 
The decision directed the local officers to allow Wheaton to proceed 
against the entry on his affidavit of contest of October 30, 1893, if they 
consider the allegations sufficient. 
Jnne 28, 1894, Wheaton filed an amended affidavit of contest alleging- 

that the said entry is fraudulent and iUegal because the said Daniel T. Wallace at 
or before the date of the said tiliug upon said land, made and entered into an agree* 
meot for the sale of said land as soon as he should obtain patent therefor; that said 
entry was not made in good faith bnt was made in the interest of another party, and 
is now held for speculative purposes. 

This affidavit was corroborated by Samuel B. Wallace. 

September 14, 1894, the local officers issued notice of contest set- 
ting the hearing for October 30, 1894. After several continuances had 
upon the agreement of the parties the case went to trial December 15^ 
1894. The contestant introduced only one witness, Samuel B. Wallace, 
to prove his allegations against the validity of the entry, while th& 
defendant offered no testimony at all. 

Samuel B. Wallace testified that on May 4, 1888, he made desert 
land entry for the tract in controversy together with one hundred and 
twenty acres of adjoining land under the name of Bion S. Wallace, 
and that on February 10, 1891, shortly before the expiration of tha 
time within which he was by law required to make final proof he relin- 
quished his entry for the reason that he had been unable to obtain 
water to irrigate the land; that prior to his relinquishment he induced 
Daniel T. Wallace to agree to make entry for the laud immediately 
upon his relinquishment; that he went to the land office in company* 
with Daniel T. Wallace and filed his relinquishment and furnished the 
money to pay the land office fees for Daniel T. Wallace's entry. Ha 
further testified on direct examination that he had an understandings 
with Daniel T. Wallace at the date of the entry that he was to receive 
one-half of the land after final proof, for which he was to give hi» 
nine shares of stock in the Owens Eiver Canal Company, but that this- 
understanding was never reduced to writing, and that in 1893, he 
entered into a written agreement with the entrymau by the terms of 
which he was to do all the work required by law to be done on the 
laud, and to pay for advertising the final proof notice, and to pay 
•780 after final proof for a title to all of the land. On cross-examiua* 
tion, he contradicted his statement that he had had an understanding 
with Daniel T. Wallace at the date of the entry for the conveyance of 



104 DECISIONS RELATING TO THE PUBLIC LANDS. 

one half of the land, and testified that he did not hate such an under- 
standing until after the entry was made. He further testified that he 
did the work required to be done on the laud and paid for advertising 
first final proof notice; that he, on October 28, 1893, or a few days 
before that date, transferred to Daniel T. Wallace nine shares of stock 
in the Owens Eiver Oaiial Company, but that he took a bond from 
th('. eutryman for a reconveyance of the stock and that the transfer 
was not made in good faith, but solely for the purpose of enabling the 
entryman to make a satisfactory showing on final proof that he had a 
right to sufficient water to irrigate the land; that Daniel T. Wallace 
reconveyed the stock to him about December 3, 1893; that he did not 
induce Wheaton to bring the contest, but that he expected to acquire 
title to the laud under his written agreement with the entryman, and 
that he had the money ($320) ready to make final payment to the local 
officers in case the final proof should be accepted. No copy of the 
contract alleged to have been entered into between the witness and 
the entryman on May 31, 1893, was ojQTered in evidence, but on January 
9, 1895, after the hearing had been closed, the contestant without 
notice to the entryman filed a certified copy of the complaint in an 
action brought by D. T. Wallace against S. B. Wallace in the district 
court for the State of Nevada in and for the county of Lander, to 
recover damages for the breach of the alleged contract, which is set 
out in the complaint. 

February 23, 1895, the local officers rendered decision as follows, 
after making a statement of the facts: 

From the testimony presented it appears that the said Daniel T. Wallace at or 
before the date of the said filing npou the said lands, made and entered into an 
agreement for the sale of said lands as soon as he should obtain patent therefor, and 
that said entry was not made in good faith bat was made in the interest of another 
party and is held for speculative purposes. We accordingly recommend that said 
entry be canceled. 

On the entryman's appeal your office on October 10, 1896, rendered 
decision finding that the entryman made the entry in good faith, and 
without any agreement or understanding to convey any part of the 
land to Samuel B. Wallace; that at the date of the final proof he had 
a clear right to sufficient water to irrigate the land ; that he made the 
final proof to acquire title for his own use and benefit and without any 
intention to convey the land to any other party; and that on May 31, 
1893, he entered into an agreement to convey the land to Samuel B. 
Wallace after final proof in consideration of certain work to be done 
and money to be paid by him, but that said Samuel B. Wallace refused 
to keep his part of the agreement and did not expect the land to be 
conveyed to him. On this finding, your office held that the agreement 
to convey the land was a valid assignment of the entry under section 7 
of the desert land act, as said act is amended by section 2 of the act 
, of March 3, 1891 (26 Stat, 1095) and affords no ground for the can- 



DECISIONS RELATING TO THE PUBLIC LANDS. 105 

cellatit)!! of the entry. The decisioD of the local officers was therefore 
reversed aud the contest dismissed. 

Wheatou's apx>eal from said decision brings the case before the 
Department. 

The contestant has failed to prove that the entrynian had entered 
the land under any agreement or understanding to convey any part of 
the land to Samuel B. Wallace, or that he entered into the particular 
agreement alleged to have been made May 31, 1893, With reference 
to any written agreement, all that is proved in accordance with the 
rules of evidence, is that such agreement was entered into between the 
parties. The agreement itself was not offered in evidence. It was not 
shown that any effort was made to have it produced, and no foundation 
was laid to authorize the introduction of a copy or to allow its contents 
to be shown by parol evidence. If there is any record of the agree- 
ment, the fact does not appear. The paper which is denominated a 
certified copy of the agreement, which is found with the record, is 
not a certified copy of the agreement, but the certificate is to the effect 
that the paper is a true and correct copy of a complaint in the clerk's 
ofiice. This paper was inadmissible, and is not in a legal sense a part 
of the record. It was filed with the local officers, without notice to the 
other side, after the case had closed. It does not appear what consid- 
eration was given to it by the local officers. Your office construed it, 
but it is harmless, since, if it were to be considered as evidence, its 
terms show that it has reference to a transfer to be made after final 
proof, and was entered into at a time when it would not have been 
unlawful to make an assignment of the entry under section seven of 
the desert land act, as amended by the act of March 3, 1891 (26 Stat, 
1005). 

It has never been carried into effect. 8. B. Wallace, one of the parties 
to it, and protestant's chief witness, repudiates it and claims nothing 
under it, while the entryman submits his final proof on an entirely dif- 
ferent basis from the one contemplated by the agreement. It is insisted, 
however, as testified to by 8. B. Wallace, that there was an antecedent 
verbal agreement in reference to certain shares of water stock to be fur- 
nished the entrymen, but the witness admits that it was made subse- 
quent to the date of the entry of D. T. Wallace, and this being conceded, 
it could only have reference to acts thereafter to be performed, and 
which were abandoned and never performed. If D. T. Wallace had 
carried out the scheme of submitting his final proof on a false basis, it 
would have been rejected, and his entry canceled. 

The mental state, or mere puri)ose of an entryman, is only to be con- 
sidered in connection with some material act to be performed by him, 
either in mnking the entry or ])erfe('tin;^ it. A fraudulent agreement to 
be acted on in the future, entered into before or at the time of entry 
will vitiate it, because the illegal puri)ose and the act of entry are con- 
joined and coexistent. The contestant is in the attitude of denying that 



106 DECISIONS RELATING TO THE rUBLIC LANDS. 

an illegal purpose or scheme which has reference to a fatnre act to be 
performed can be abandoned before it ripens into an act, and its coiise- 
qnences avoided. This may be true to a limited extent in the domain 
of morals, bnt, in law, the mere entertaining of an unlawful purpose, 
which is abandoned, while it is yet only a purpose, and never acted 
upon, is without penalty. The illegal purpose which the contestant 
charges against the entryman had its origin between the two material 
acts of making entry and offering final proof. We have already seen 
that the entry is untainted, and it now remains to be seen how it affects 
the final proof. 

The offense of the entryman is that at one time he contemplated 
basing his final proof on the spurious ownership of certain water rights, 
but becoming alarmed, backed out from doing this, and became the 
owner in his own right of the necessary water and water rights on 
which he submitted his final proof. It is not denied that the land was 
reclaimed, and that the entryman was the owner of the water and water 
rights necessary for its proper irrigation, when his final proof was sub- 
mitted. This proof meets the requirements of the law. 

Tour office decision is accordingly affirmed. 



SCHOOL LANI>9-INI>X:MNITT selection— APPBOTAIf 

Todd v. State of Washington. 

The authority of the Secretary of the Treasury in the matter of school lands con- 

ferred by the aet of May 20, 1826, was transferred to the Secretary of the Interior 

by the act organising the Interior Department. 
The approval of a school indemnity selection by the Secretary of the Interior passes 

the title thereto, and, in contemplation of law, makes such selection the act of 

the Secretary, and it is thereafter not material to inquire how snch selection was 

made in the first instance. 
The provisions contained in sections 10, and 11, of the act of Fehraary 22, 1889, In 

so far as in conflict with sections 2275 and 2276, R. 8,, are superseded by the aet 

of February 28, 1891, amending said sections. 

Secretary Francis to the Oommissioner of the General Land Office^ Jan- 
(I. H* L.) uary 30, 1897. (C. J. G-.) 

Thomas W. Todd has appealed from yonr office decision of September 
23, 1S95, sustaining the action of the local officers in rejecting his home- 
stead application of August 5, 1895, for the NE. J of Sec. 9, T. 38 N., 
E. 2 E., W. M., Seattle land district, Washington. 

The ground for such action was that the said tract was not public 
land of the United Statea, the same being included in list No. 1 of 
school indemnity selections approved May 4, 1805, and certified to the 
State of Washington, and therefore not subject to homestead entry. 

It would seem that the said selection was regular and valid notwith- 
standing the contention of the appellant to the contrary. 



DECISIONS RELATING TO THE PUBLIC LANDS. 107 

The appeal urges that the said selections are invalid for the following 
reasons: 

1. The connty commissioners were not aatliorized to select land in lien of defi- 
ciencies for natural causes. 

2. Because Washington was not entitled to indemnity on the basis employed. 

3. Because the township in which this land was selected was not entitled to the 
amount selected. 

4. Because the act of February 22, 1889, repealed the acts reserving said land, so 
far as they apply to Washington. 

5. Because the act of February 22, 1S8'.\ has provided school lands for the State, 
and the manner in which she may acquire them. 

6. Because the cause for the reservation of the land has ceased to exist. 

It will not be necessary for the purposes of thjs decision to consider 
the foregoing assignments in regular order. 

Section 20 of the act of March 2, 1853 (10 Stat., 172), establishing the 
territorial government of Washington, provides — 

That when the lands in said Territory shall be surveyed under the direction of the 
government of the United States, preparatory to bringing the same into market or 
otherwise disposing thereof, sections numbered sixteen and thirty >siz in each town- 
ship in said Territory shall be, and the same are hereby, reserved for the purpose of 
being applied to common schools in said Territory. And in all cases where said sec- 
tions sixteen and thirty-six, or either or any of them, shall be occupied by actual 
settlers prior to survey thereof, the county commissioners of the counties in which 
said sections so occupied as aforesaid are situated, be, and they are hereby, author- 
ized to locate other lands to an equal amount in sections, or fractional sections, as 
the case may be, within their respective counties, in lieu of said sections so occupied 
as aforesaid. 

The act of February 26, 1859 (11 Stat., 385), authorized the settlers 
on sections sixteen and thirty-six, provided for in the above act, to 
pre-empt their settlement claims; and if said sections happened to 
be reserved or pledged for the use of schools, other lands were appro- 
priated in lieu of such as might be patented by pre-emptors, the said 
lands to be selected and appropriated in accordance with the principles 
of adjustment and the provisions of the act of May 20, 1826 (4 Stat., 
179). The latter act provides that the selections shall be made by the 
Secretary of the Treasury; hence, the appellant contends that there is 
no authority under the act of February 26, 1859, for the said selections 
to be made by the county commissioners, they not being specifically 
mentioned as in the act of March 2, 1853. 

The Department of the Interior was created by the act of Congress 
approved March 3, 1849 (9 Stat, 395). Section three of said act 
provides — 

That the Secretary of the Interior shall perform all the duties in relation to the 
General Land Office, of supervision and appeal, now discharged by the Secretary of 
the Treasury. 

In section 441 of the Revised Statutes the Secretary of the Interior 
is charged with the supervision of public business relating to the public 
lands. 



108 DECISIONS KELATING TO THE PUBLIC LANL 

Hence, all the powers relatiDg to the public lands conferred upon tlio 
Secretary of the Treasury by the act of May 20, 1826, were transferred 
to the Secretary of the Interior by the act of March 2, 1849, organizing 
the Department. So, granting that the selections herein should be 
made in accordance with the provisions of the act of 182G, as contended 
by plaiutiflf, yet, by virtue of the organic act of 1849, as embodied in 
said section 441 of the Kevised Statutes, the said selections could be 
made by the SecTctary of the Interior, aud still be in accordance with 
the provisions of the act of 1826. Notwithstanding no specific mention 
is made of the county commissioners in the act of 1859, still the power 
to make the selections remains with the Secretary of the Interior by- 
virtue of legislation subsequent to the act of 1826. So long, therefore, 
as tbey are made under the authority and approval of the Secretary of 
the Interior it matters not how they werie made in the first instance. 
When approved by the Secretary of the Interior they under the law- 
become his selections. The fact that the selections were made in the 
first instance by the county commissioners, does not on that account 
invalidate them. The approval of the selections is the act that passes 
title, and as has been shown the Secretary of the Interior possesses 
the authority to make this approval. 

Nearly all other propositions contained in the assignment of errors 
were definitely decided in the case of Daly r. State of Washington (20 
L. D., 35). It was held in that case that a selection is not necessarily 
invalid though in excess of the basis on which it is made, for the reason 
that the excess was undoubtedly in compensation for a deficiency in 
some other selection embraced in the list; that the act of February 26, 
1859, is applicable to the State of Washington, as previously held in 
the cases of John W. Bailey et aL (5 L. D., 216), Hulda M. Smith (11 
L. D., 382), and Sharpstein v. State of Washington (13 L. t)., 378); and 
that the reservation created by the act of March 2, 1853, is not released 
by the enabling a<;t of February 22, 1889 (25 Stat., 676), as held in the 
case of L. H. Wheeler (11 L. D., 381). See also cases of Levi Jerome 
et aL (12 L. D., 165), and Sharpstein v. State of Washington {supra), 

A lengthy argument is filed by the appellant in support of the errors 
assigned, and especially in an endeavor to show that the act of Febru- 
ary 26, 1859 (R. S. 2275 and 2276), was repealed by the act of February 
22, 1889. The act of February 26, 1859, was a general act, and the 
apparent conflict between said act and sections 10 and 11 of the act of 
February 22, 1889, has been recognized by the Department, and it has 
been held that the provisions contained in sections 10 and 11 of the 
last mentioned act are superseded by the act of February 28, 1891 (26 
Stat., 790), amending sections 2275 and 2276 of the Revised Statutes. 
Thus, in the instructions to your office dated April 22, 1891 (12 L. D., 
400), it was stated 

that the provisious of the prior act of February 22. 1889, in so far as they are in 
ooDflict with those of said sections 2275 and 2276 of the Revised Statutes as amended 



DECISIONS BELATINO TO THE PUBLIC LANDff. 109 

by the later act of February 2^, 1891, are saperseded by tbe provisiionB of said sec- 
tions as amended, and the grants of school lands to those States mentioDed in said 
act of February 22, 1889, are to be administered aud adjusted under the provisions 
of this later general law. 

The appellant herein makes no allegation of settlement prior to the 
survey of lands in the field, which would bring him within the provi- 
sions of sections 2275 and 2276 as amended. His homestead application 
was presented August 5, 1895, and hence was properly rejected, the land 
having been approved to the State May 4, 1895. 

Your office decision is hereby affirmed. 



PBTVATE I^ANB CLAIM— ACT OF JUIiT 7, 188tl. 

The Pebbinb Gbant. 

The i^rant made to Dr. Perrine by tbe act of July 7, 1838, and sabsequently conferred 
by Congress Apon his heirs, was a grant in praeaenti, conveying the legal title to 
the grantees, defeasible only by forfeiture duly declared by act of Congress; and 
nntil such forfeiture be so declared the grantees have the right to make the 
settlement required as a condition precedeut to tbe issue of patent. 

Where the attention of Congress has been called to the fact that the conditions sub- 
sequent in a grant bave not been complied with, aud no action is taken by Con- 
gress, such failure to act will be taken by tbe Department as an expression of 
the legislative will that tbe decisions of the courts be accepted as a guide in 
administering the law. 

The right of settlement on the granted premises is restricted to the grantees or those 
claiming under them, and all other settlers thereon are naked trespassers ; and 
their settlements may be claimed by the grantees as a fulfillment of tbe condi- 
tions of the grant, whenever the settlement is such as tbe grant requires. 

If the terms of the grant are complin with it inures to the beneficiaries thereunder, 
and patent will issue accordingly ; it is therefore not material for the government 
to inquire as to the interest of others in said grant. 

Beeretary Francis to the Oommvtaioner of the Oeneral Land Office, Jan- 
(L H. L.) uary 30, 1897. (P. J. 0.) 

I am in receipt of yonr report, of date January 9^ 1897, upon a com- 
munication addressed to this Department by the Honorable Thomas 
H. Carter, United States Senate, of date December 31, 1896, in refer- 
ence to tbe Perrine grant in Dade county in tbe State of Florida. 

The communication is as follows: 

Seferring to your recent communication concerning the Perrine land grant in Fla., 
addressed to the Senate Committee on Public Lands I, as chairman of the sub-com- 
mittee having the matter in charge have been informed that proofs of compliance 
with the terms of the grnut are now before the Commissioner of the General Land 
Office awaiting examination. 

Desiring to dispose of the matter, I bave the honor to request that the proofs 
referred to be taken up for examination at the earliest practicable date and that I be 
advised of the conclusion of your Department as to their sufficiency. 

The subject of this inquiry, the Perrine grant, is a matter that has 



110 mcmoss kblatikg to the public JuAnds. 

been caHed to the attention of your olBce and tiie Dq^tment by those 
interested since the first grant to Doctor Henry Pefiiae in 1838. Its 
history, together with that of the original grantee, is replete with inci- 
dents in connection with the early settlements of Sonth Florida and 
endeavors to cnltivate and propagate the plants contemplated by the 
act, together with many distressing incidents brought about by the 
Seminole Indian War, which prevailed throughout that region for 
nearly a quarter of a century after the territory had been purchased 
firom Spain. The history of it, so far as necessary to determine the 
matter that has been again recently brought to the attention of the 
Department, is as follows: 
Congress by act of July 7, 1838 (5 Stat., 302), passed the following act: 

Whereas in obedience to the Treasury circular of the 6th of September, eighteen 
hundred and twenty-seven, Doctor Henry Perrine, late American Consul at Cam- 
peachy, has distiuquishod himself by his persevering exertions to introduce tropical 
plants into the United States ; and whereas he has demonstrated the existence of a 
tropical climate in southern Florida, and has shown the consequeirt certainty of the 
immediate domestication of tropical plants in tropical Florida, and the great proba- 
bility of their gradual acclimation throughout all our southern and south-weatem 
states, especially of such profitable plants as propagate themselves on the poorest 
soils; and whereas, if the enterprise should be successful, it will render valuable onr 
hitherto worthless soils, by covering them with a dense population of small cultiva- 
tors and family manufacturers, and will thus promote the peace, prosperity, and 
permanency of the Union: Therefore, be it enacted by the Senate and House of 
Representatives of the United States of America in Congress assembled, that a town- 
ship of land is hereby granted to Doctor Henry Perrine and his associates, in the 
southern extremity of the peninsula of east Florida, to be located in one body of six 
miles square, upon any portion of the public lands helow twenty-six degrees north 
latitude. 

Sec. 2. And be it further enacted, that the said tract of land shall be located 
within Ueo years from this date, by said Henry Perrine, and shall be surveyed nnder 
his direction, by the surveyor of Florida, provided, that it shall not embrace any 
land having sufficient quantities of naval timber to be reserved to the United States, 
nor any site for maritime ports or cities. 

Sec. 3.' And be it further enacted, that whenever any section of land in said tract, 
shall be really occupied by a bona fide settler, actually engaged in the propagation 
or cultivation of valuable tropical plants, and upon proof thereof being made to the 
Commissioner of the General Land Office, a patent shall issue to the said Henry 
Perrine and his associates. 

Sec. 4. And be it further enacted, that every section of land in the tract aforesaid, 
which shall not be occupied by an actual settler, positively engaged in the propaga- 
tion or cnltivation of nsefnl tropical plants, within eight years from the location of 
said tract, or when the said adjacent territory shall be surveyed and offered for sale, 
shall be forfeited to the United States. 

It is shown by the voluminous correspondence of Doctor Perrine, 
after the passage of this act and until some time in the year 1840, that 
although the obstacles he was forced to encounter in order to carry out 
the terms of the grant were almost insurmountable, he did make an 
effort so to do, moved his family there and resided upon the land that 
he had selected in compliance with this act. It is shown by the same 
correspondence that he planted some of the plants that were contem- 



DECISIONS RELATING TO THE PUBLIC LANDS. Ill 

plated, but owing to tbe unsettled conditions, marauding bands of 
Indians infesting the country, the efforts were confined to a very small 
area, upon which it seems he started a nursery for the purpose of pro- 
ducing the plants that he intended experimenting with. While engaged 
in this work at Indian Key, some time in the summer of 1840, Doctor 
Perrine was murdered by the Seminole Indians, his wife and children 
barely escaping with their lives ; his house, furniture, library, out build- 
ings, and other valuable improvements were burned and destroyed. 

Congress, by the act of February 18, 1841 (6 Stat,, 819), passed the 
following supplemental act: 

Whereas, under the provisions of the act, to which this act is a supplement, Doctor 
Henry Perrine made, in the manner thereby required, the location therein author- 
ized; and while engaged in the necessary measure to carry into effect the object 
contemplated by said act, was murdered by the Seminole Indians ; and whereas Mrs. 
Ann F. Perrine, the widow of the said Doctor Perrine is anxious to continue the 
undertaking thus commenced by her late husband, but is prevented from so doing by 
the continuance of the Indian War in Florida: Therefore, be it enacted, etc., that 
Mrs. Ann F. Perrine, the widow of the said Henry Perrine, and Saruh Ann Perrine, 
Hester M. S. Perrine, and Henry E. Perrine, his surviving children, are hereby 
declared to be entitled to all the rights and privileges vested in and granted to the 
said Doctor Henry Perrine, by the act to which this is supplement, and that the 
time limited by said act, in which every section of said grant shoald be occupied to 
prevent tbe forfeiture of the same to the United States, be, and the same is hereby 
extended to eight years ftom and after the time when the present Indian War in 
Florida shall cease and determine. 

The land was officially surveyed in 1847 and the tract theretofore 
designated by Doctor Perrine in person was set aside for him, and 
embraces lands described as follows: Sections 12, 13, 24, 25 and 36 T. 
^ S., E. 39 B. ; Section 1, T. 56 S., R. 39 E. ; Sections 7, 8, 9, 10, 11, 14, 
15, 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35, T. 55 
8., R. 40 B.; and Sections 2, 3, 4, 5, and 6, T. 56 S., R. 40 B., Tala. Men 

It appears that after the passage of the supplemental act the widow 
and children of Doctor Perrine undertook to carry out the provisions 
of the same by establishing settlers on each section. Thirty-six fami- 
lies from the Bahama Islands were engaged came over and commenced 
to establish their homes on the land, but were soon compelled to aban- 
don them by reason of being frightened or driven oif by the Seminole 
Indians. 

Some effort, however, was evidently made by these inhabitants, or 
the heirs directly, to comply with the terms of the act, as I find in the 
record the affidavits of Alexander Mackay, R. R. Fletcher and Wil- 
liam H. Hears, sworn to on April 5, 1848, in which they say that they 
superintended the planting of "sea sal hemp" and lime seed; each of 
them enumerate the sections of land upon which this planting was 
done, and an examination of the same shows that it covered every one 
of the sections included in the grant. 

It appears that the representatives of the heirs in 1850 presented a 
memorial to Congress praying that the terms of the grant be extended 



112 DECISIONS RELATING TO THE PUBLIC LANDS. 

owing to tbe unsettled conditions that then prevailed in that vicinity. 
Ko action, however, seems to have been taken by Congress in relation 
to the matter. 

It is a matter of history that the Seminole War, which was referred 
to by Congress in the supplemental act, was one of long duration and 
seriously retarded the settlement of that part of the country. It 
appears, however, by the records in the War Department, that open 
hostilities bfficially ceased in December, 1855; yet it is certain that 
there were marauding bands still harassing the settlers tor some time 
thereafter. 

From 1862 down to the present time the heirs of Doctor Perrine have 
been before your office, the Department and Congress, persistently 
demanding that their rights to the grant should be recognized; but 
little seems to have been accomplished in the matter except by reports 
made from your office to Congress in relation to the status; and in that 
of March 17, 1887, your office recommended that patents be issued to 
three sections named, because proof had been made of compliance 
with the act. 

It appears that the land embraced in the grant was regularly with- 
drawn and set apart under the provisions of said act of 1838, and 
although there had not been a strict compliance with its terms by the 
heirs of Doctor Perrine, and proof made as required, yet the lands had 
been held not subject to disposal on any account until Congress shall 
have given authority to restore the same to the public domain. 

The State of Florida at one time laid claim to the land under the 
swamp act of 1850, and in 1873' made selection of the same, but in 
view of the priority of the Perrine grant these selections were sus- 
pended by your office and no steps taken in relation thereto until the 
rights of the grantees were fully determined. 

The inquiry of Senator Carter, quoted above, in relation to this 
grant, seems to have been brought about because of the introduction 
of a bill in the first session of the fifty-fourth Congress to restore to 
the public domain in the lands within the grant, to enable settlers 
within the limits of the same to homestead the tracts actually occupied 
by them. 

The report of your office has been forwarded to the Department, by 
reason of the request of Senator Carter, together with all the records 
in connection with the matter, and it has been deemed advisable to 
investigate the subject with a view of determining whether or not any 
further legislation is required or whether the parties have complied 
with the terms of the grant sufficiently to warrant the issuance of 
patents to them. 

After mature deliberation upon this subject, I am convinced that the 
grant to Doctor Henry Perrine, subsequently conferred as it was by 
the act of Congress upon his heirs, was a grant inpraesentij conveying 
the legal title to the grantee, defeasible only by forfeiture duly declared 
by act of Congress. Until such forfeiture be so declared the grantee 



DECISIONS KELATING TO THE PUBLIC LANDS. 113 

has the right to make the settlement required by the grant as a condi- 
tion precedent to the issuance of patent, as contemplated by the acts 
of Congress, and whenever the requirements of the grant have been 
complied with as to any section of the township, and proofs thereof 
submitted and accepted, a right to title thereto has vested, and Con- 
gress can not declare a forfeiture thereof without impairing the validity 
of the grant. 

That the grant is one in praesenti is conclusively decided by the 
supreme court in Schulenberg v. Harriman (21 Wall., 44). The question 
before the court in that case was the construction of an act granting 
lands to the State of Wisconsin to aid in the construction of railroads, 
and by the first section it is declared, ^Hhat there be and is hereby 
granted to the State of Wisconsin," etc., certain sections of land enu- 
merated. And it was provided further, in the fourth section, that, 

if said road is not completed within ten years, no further sales shall be made, and 
the lands unsold shaU revert to the United States. 

Determining whether this grant should be forfeited because the road 
was not constructed strictly according to the terms of the statute, and 
referring directly to the last quotation above, the court say : 

It is settled law that no one take advantage of the nonperformance of a condition 
snbseqnent annexed to an estate in fee, bnt the grantor or his heirs, or the successors 
of the grantor if the grant proceed from an artificial person ; and if they do not see 
lit to assert their right to enforce a forfeiture on that ground, the title remains 
unimpaired in the grantee. The authorities on this point, with hardly an exception, 
are aU one way from the Year Books down. And the same doctrine obtains where 
the grant upon condition proceeds from the government; no individual can assail 
the title it has conveyed on the ground that the grantee has failed to perform the 
eonditionB annexed. 

In what manner the reserved right of the grantor for breach of the condition must 
be asserted so as to restore the estate depends upon the character of the grant. If 
it be a private grant, that right must be asserted by entry or its equivalent. If the 
grant be a public one it must be asserted by judicial proceedings authorized by law, 
the equivalent of an inquest of office at common law, finding the fact of forfeiture 
and adjudging the restoration of the estate on that ground, or there mnst be some 
legislative assertion of ownership of the property for breach of the condition, such 
as an act directing the possession and appropriation of the property^ or that it be 
offered for sale or settlement. 

The doctrine here announced by the court has been followed by it in 
a great number of cases subsequently, notably those of Van Wyck v, 
Knevals, 106 U. S., 360; St: Lous &c.. Railway v. McGee 115 U. 8,, 
469; Bybee v. Ore. and Cal. R. R. Co. 139 U. S. 663; Deseret Salt Co. 
r. Tarpey, 142 U. S., 241; and Lake Superior Ship &c. Co. v, Cunning- 
ham, 155 U. S., 354. 

The principle decided in these cases has been invariably applied by 
the Department in the construction of similar grant. See Cooper et aL 
r. Sioux City R. R. Co., 1 L. D. 345; in re Central Pacific R. R. Co., 
2 L. D., 489; Wisconsin R. R. Co., 5 L. D., 81; Wisconsin Central R. R. 
Co., L. D., 100; and Plaetke v. Central R. R. Co., 10 L. D., 317. 
10671— VOL 24 8 



114 DECISIONS RELATING TO THE PUBLIC LANDS. 

It Las also been decided by the Department tbat where the attention 
of Congress has been called to the fact that the conditions subsequent 
have not been complied with (as in this case by a petition of the 
grantees in 1850 and again in 1887), and no action is taken by the Con- 
gress, the Department accepts its failnre to act as an expression of its 
will that the decisions of the court shall be taken as its guide in admin- 
istering the law. Daneri r. Texas and Pacific R. R. Co., 2 L. D., 548. 

In view of these authorities it would seem that if there has been a 
compliance with the terms of the act upon the part of the grantees, 
even though it may have been since the close of the Seminole War., as 
contemplated by Congress in the supplemental act, the fee of the land 
still rests in them, and before final action by Congress, or judicial pro- 
ceedings instituted, patents may be issued to the grantees. 

It may be said further, that the right of settlement upon the granted 
premises would be restricted to the grantees or those claiming under 
them, and all other settlers thereon are naked trespassers and their 
settlement may be claimed by the grantees as a fulfillment of the con- 
dition of the grant whenever the settlement is such as the grant 
requires. 

It appears that there were a number of settlers on the lands, and in 
December, 1896, all of them with the exception of John W. Roberts, 
Sarah M. Roberts, James A. Smith, John F. Roberts and Oeorge H. 
Mehring, made proof before a United States Commissioner, and the 
same was transmitted to your office. It is not deemed advisable to go 
into details regarding this proof. Its sufficiency is a matter your office 
must primarily pass upon, which has not yet been formally done. It 
is 'Sufficient in this connection to say that in your office letter of Jan- 
uary 9, 1897, reporting on reference of letters of Senator Carter, it is 
said, '<the proofs appear to me to be in compliance with the provisions 
of Sec. 3 of the act of July 7, 1838." 

Your office during the month of January, 1897, has forwarded to the 
Department several letters written by the three Roberts, Mehring and 
Smith, the persons who, as stated above, refused to make final proof, 
and one E. I. Robinson, who is acting as attorney for the others. The 
same parties have also written letters to the Secretary of the Interior; 
also to a United States Senator, who has forwarded copies of the 
letters he received to the Department. These letters are not deemed 
of sufficient importance as bearing upon any question as to the validity 
of the grant or the improvements placed thereon by themselves or those 
who did make final proof, to warrant more than a passing consideration. 

In your office report to the Department, of January 9, 1897, you refer 
to the letter of Robinson and say: 

I think no showing is made by the said letter which wonld warrant the sending of 
an inspector to Florida, or which would raise any presnmption of bad faith against 
the claimants under the grant. 

I concur in this. The statements are not under oath, and can not 



DECISIONS RELATING TO THE PUBLIC LANDS. 115 

tlierefore be accepted to overcome the fiiml proof. Aside from this 
there is nothing charged, even if sworn to, that would d^eat the grant 
or warrant sending an inspector. The parties do not state that there 
has been any failure to comply with the terms of the grant in regard 
to the particular tracts they occupy. 

The particular grievance of these persons seems to be against certain 
railway companies which appear to have been instrumental to some 
extent in the development of the lands. It is not shown by the record 
before me what interest the companies have in this land, and it is 
wholly immaterial what their interest may be. If the terms of the 
grant are complied with, even if railway companies have assisted in 
doing so, the grant inures to the beneficiaries under the grant, and the 
patents will necessarily run to them. Any grievances, therefore, the 
settlers may have against the companies is a matter between themselves 
and not one the government will take part in. 

These same parties have also forwarded a copy of an affidavit sent 
to the vice president of the East Coast Eailway Company in which is 
recited at some length their grievances. But as said in reference to 
the letters, the matters therein contained do not raise any question the 
government can consider. 

There is also a copy of another affidavit made by the same parties, 
not addressed to any one, but inasmuch as it says, 

that if a goYemnient inspector authorized to take depositions of Bettlers and thor- 
ougbly honest should come down here he would be kept busy a long time investi- 
gating injuries to the settlers and frauds against the government, 

I take it that it was meant for your office, yet why a copy and not 
the original should have been filed is unexplained. In addition to this 
suggestion in regard to sending an inspector it appears that all they 
ask is for the government to arrange so that they can deal directly with 
the government in regard to securing their titles. 

As before said the Department is powerless to aid them even if the 
matter were properly presented for its consideration. By the terms of 
the grant patents must issue in accordance with the terms of the acts 
and could not be given either to the settlers or the railway companies. 

The record is returned to your office with directions to examine the 
final proof submitted and if found satisfactory to issue patents to the 
beneficiaries of said grant. 

It is so ordered* 



116 DECISIONS RELATING TO THE PUBLIC LANDS. 

SALT SPRINGS AND SALINE LANDS-SELECTION. 

State of Oregon ex al. v. Jones. 

The provisions in the act of Kebrnury 14, 1859, granting salt sprinf^s and adjaoent 
lands to the State of Ore<;oii, and the act of December 17, 1860, amendatory 
thereof, so far as they tix a time for selections under snid grant, are directory, 
and not mandatory ; but us the grant so ma<le only becomes effective as to spe- 
cific tracts on selection by the State, the right to make snch selections after 
the expiration of the time fixed therefor will be defeated by an intervening 
adverse right asserted under the general provisions made for the disposal of 
saline lands by the act of January 12, 1877. 

Secretary Francis to the Commissioner of the OeneraX Land Office^ Feb- 
(I. H. L.) ruary 6, 1897. (O. J. W.) 

On September 11, 1895, David B. Jones filed an affldsvit duly cor- 
roborated, alleging that the SW. J of SW. J of Sec. 4 and NW. J of 
NW. i of Sec. 9, SW. i of SE. J of Sec. 8 and KW. J of NB. J of Sec. 17, 
T. 35 N., R. 25 E., W. M., Lakeview, Oregon, were lauds unfit for culti- 
vation and were saline in character, and should be disposed of as saline 
lands. On September 25, 1895, proof was submitted in support of said 
allegations, and on that day, based on the evidence so submitted, the 
local officers rendered a joint decision, finding the land to be saline in 
character and recommending its sale. 

By letter **G" of date November 23, 1895, your office ordered said 
land to be advertised and offered for sale, in accordance with the pro- 
visions of the act of January 12, 1877 (19 Stat., 221). The land was 
advertised in accordance with departmental regulations and was sold 
on February 21, 1895 to David B. Jones, who was the highest and best 
bidder, and cash certificates Nos. 1867 and 1868 were issued covering 
said purchases. Subsequently J. K. Barry, who was present and a 
competitive bidder at said sale, filed a protest against the issuing of 
patents to Jones on his cash entries, and asking that said sales be set 
aside and declared void, and that no more lands in Oregon be sold 
under said act of 1877, until salt springs and contiguous lands granted 
to the State for its use by act of Congress of February 14, 1859 (11 
Stat., 384), have been selected by the governor thereof to the extent 
named in the grant. On April 21, 1896, your office considered the 
report of the local officers, touching said sale and Barry's protest, and 
held that the sale of the lands was authorized by said act of January 
12, 1877 ; that the proceedings connected with said sale were regular 
and that Jones was entitled to patents for the tracts sold. It was 
further held that Barry had no right or interest to be considered, and 
as he exhibited no authority to represent the State of Oregon, he had 
no right to intervene and his protest should be dismissed. 

From this decision Barry appealed. Pending said appeal, but before 
the papers in the case were transmitted here, the governor of Oregon 
transmitted to your office an application to select the same lands included 



DECISIONS RELATING TO THE PUBLIC LANDS. 117 

in the sale to Jones, ander the aforesaid act of February 14, 1859, which 
application was transmitted here by your office as a part of the record 
iu said case. W. K. Barry filed his protest, but neither he nor his coun- 
sel exhibited any authority to represent the State of Oregon up to the 
time your office decision was rendered. Since the application of the gov- 
ernor to make selection of the land in question has been filed, the attor- 
ney who filed the protest, has also filed authority to represent the State, 
HO that the State may now be considered as a proper party to the case 
and as properly represented. While your office properly held Barry's 
]>rorest for dismissal as the record then stood, as the State now makes 
tiie protest its own by adoption, Barry's right to file and maintain it 
becomes inconsequent, and need not be further considered, inasmuch 
as said protest asserts the right of the State to be paramount. The 
ap[ilication of the governor of Oregon to make selection of the land 
iuclnded in Jones' purchase is met by a protest filed by Jones in the 
form of a motion to reject the list of selections. The contentions thus 
l>resented call for an interpretation of the acts of February, 1859 (11 
Stat., 384), of December 17, 1860 (12 Stat., 124) and of January 12, 1877 
(19 Stat., 221). The contention of the State is that the provisions in 
the first named acts, as to the time within which the State shall make 
its selections, are directory and not mandatory, and theretbre until the 
claim of the State is first satisfied, sales of saline lands under the act 
of January 12, 1877, are made subject to the existing prior right of the 
State to select such land under its grant. 

The correctness of this contention is denied by Jones. Some of the 
questions presented by the present record and contentions were consid- 
ered here in the somewhat similar case of State of Colorado, ex parte 
( 10 L. D.y 222), and the. ruling in that case as far as the same is apphca- 
ble to the present one will be followed. It is to be observed, however, 
that individual rights were not in issue in that case, and it is stated in 
the body of the decision, 

Had third parties intervened prior to the selection and initiated proceedings under 
the act of 1877 touching the lauds in question, the right of the State thereto might 
hare been lost. 

Here Jones initiated proceedings under the act of January 12, 1877; 
proved the lands to be saline in character; had become the purchaser 
of them; and had paid the purchase price to the government, before the 
State made any motion to select these lands under its grant. In the 
Colorado case, it was held, that the act of January 12, 1877, did not 
rep<^al the earlier act making the grant to the State, and that the two 
acts might stand together, each having a separate field in which to 
oi>erate, and providing different methods of acquiring title to saline 
land9. 

The act making the grant to Colorado was as follows: 

Tbat aU salt springs, within said State, not exceeding twelve in number, with six 
Mctiona of land at^oining, and as contiguous as may be to each, shall be granted to 



118 DECISIONS RELATING TO THE PUBLIC LANDS. 

said State for its use, the said land to be selected by the govenior of said State 
within two years aftt»r the admission of the State, and when so selected to be used 
and disposed of on snch terms, conditions and regulations as the legislature shall 
direct; Provided, That no salt spring or lands the right whereof is now vested in 
any individual or individuals, or which hereafter shall be confirmed or adjudged 
to any individual or individuals, shall by this act be granted to said State. 

The language of the act under consideration, granting salt springs 
to the State of Oregon, is in tbe same terms as the Colorado grant, 
except that the selection is to be made in one year after the admission 
of the State instead of two years as in the Colorado act. The act of 
17th of December, 1860 (12 Stat., 124), amending this act, amends it 
only in the matter of time within which the selection is to be made^ by 
extending it to any time within three years from the passage of the 
amendatory act. It appears therefore that the language to be construed 
in order to determine the character of the grant is the same in both 
grants referred to. As it was held in the Colorado case that the pro- 
vision in reference to tbe time within which the selection should be 
made was directory, and that a failure to make snch selection witbin 
that time would not of itself work a forfeiture of the grant, a different 
construction of this clause of the act can not now be given without 
overruling said decision, and no sufficient reason for doing this appears. 

The act of February 14, 1859 (11 Stat., 334) took effect on its 
approval, and was a grant to the State of certain salt springs and 
lands in connection therewith, thereafter to be selected by the gov- 
ernor. The grant operated to pass the title to a certain number of salt 
springs and the prescribed amount of lauds in connection with each, 
from the government; but it did not and could not attach to any spe- 
cific salt springs or sections of land until selection was made. The 
act does not in any way limit the power of Congress to provide other 
methods of disposing of lands of the class cont)9mplated, so long as 
the same remain unselected. Congress had the power to pass the act 
of January 12, 1877, and as the act of February 14, 1859, is not repealed 
or affected by it, effect should be given to both acts as far as may be. 

We here have, therefore, a case where one of the principles announced 
in the case of Shepley et al, v. Cowen et al. (91 U. S., 330) is applicable. 
That is we have two modes of acquiring title to saline lands, both of 
which may stand. The rule announced in the case referred to, is that 
in a particular case, where two modes exist of acquiring title from the 
government, the one will prevail under which the first initiatory step 
was taken. Here the first step was taken under the act of January 12, 
1877, and by Jones. 

In support of the contention that title passed to the State of Oregon, 
to the particular land in question, on the approval of the act of Feb- 
ruary 14, 1859, the special report in reference to compromise and settle- 
ment between the United States and the State of Arkansas, No. 1958, is 
referred to as an official admission of the correctness of the construction 
contended for in this case. This report is not authority for the priu- 



DECISIONS RELATING TO THE PUBLIC LANDS. 119 

ciple insisted upon. It is nowhere conceded that the government had 
X)iirted with the title to saline lands by its original granting act of salt 
springs to the State of Arkansas, and the very fact that the settle- 
ment recouimer^ded was recommended as a compromise only, deprives 
it of value as a judicial precedent. It is a mere recommendation of 
terms of compromise, which have not yet been approved by Congress. 
The construction of the act contended for by the State does not seem 
to be in harmony with the follovimg proviso of the act: 

Prodded, that no j^alt spring or land, the right whereof is now vested in any indi- 
vidaal or individuals, or which may hereafter be confirmed or adjudged to any 
individual or individuals shall by this article be granted to said State. 

After due consideration of the several acts of Congress referred to, 
and the authorities cited, my conclusions are: 

1. That the doctrine announced in the Colorado case, supra^ constru- 
ing a similar act to the one here in question to the effect that the pro- 
visions of said act relative to the time within which selections of salt 
springs are to be made by the State, are directory and not mandatory, 
will be adhered to. 

2. That the grant becomes operative, in the sense of attaching to 
specific lands, only on selection by the State. (139 U. S., 1-5). 

3. That the application of the State to make selection of the lands 
purchased by Jones should be rejected, because his right attached 
before it made the application, but the right of the State to make 
selection of any unappropriated saline lands in said State in satisfac- 
tion of its grant is recognized. 

Yoor office decision is affirmed. 



AATLROAB GRANT-SECTION 2» ACT OF APRIJL dl, 1876. 

GooDBiCH V. California and Oregon Land Co. 

The proTisions of section 2, act of April 21, 1876; are not restricted to persons who 
made entries nnder section 1, of said act, bat apply, in the event of abandon- 
ment by suchoriginat entrymen, to cases where ''under the decisions and rul- 
ings of the Land Department/' the lands covered by such original entries have 
been ''re-entered by pre-emption or homestead claimants who hav^ complied 
with the laws governing pre-emption and homestead entries/' and submitted 
satisfactory proof of such compliance. 

Secretary Francis to the Commissioner of the Oeneral Land Office^ Feth 
(I. H. L.) ruary 6y 1897. (E. M. R.) 

This case involved the B. J of the NB. i of Sec. 9, T. 30 S., R. 46 E., 
Lake View land district, Oregon, and is before the Department upon 
appeal, by the California and Oregon Land Company, from your oflBce 
decision of October 21, 1895, awarding the tract in controversy to 
Amelia Goodrich. 



120 DECISIONS RELATING TO THE PUBLIC LANDS. 

The record shows that this tract is within the primary limits of the 
grant made by the act of July 2, 1864 (13 Stat., 355)^ to aid in the con- 
struction of the Oregon Central Military Boad, as shown by the with- 
drawal made on account thereof on May 2, 1876, Two maps showing 
the definite location of this road were filed in the Department — ODe on 
March 17, 1869, and the other on February 28, 1870. 

This tract was listed on August 23, 1883, by the California and Ore- 
gon Land Company, successor in interest to the aforesaid road company* 

April 15, 1874, A. C. Goodrich filed declaratory statement for the 
tract in controversy, alleging settlement on July 1, 1873. May 2, 1889, 
Amelia Goodrich filed declaratory statement for the same tract, alleg- 
ing settlement on !ITovember 18, 1888. After notice given, proof was 
made by the said Amelia Goodrich, and final certificate was issued 
January 7, 1891. 

The land in question was withdrawn by your office letter of date April 
15, 1876, which was received on May 2, 1876, upon which date the with- 
drawal became eff*ective. At that date this tract was covered by the 
declaratory statement of A. C. Goodrich. 

Your office decision held that this entry was confirmed under the 
seox)nd section of the act of April 21, 1876 (19 Stat., 35), which is as 
follows: 

That when at the time of such withdrawal as aforesaid valid pre-emption or home- 
stead claims existed npon any lands within the limits of any such grants which 
afterward were abandoned, and, under the decisions and rulings of the Land Depart- 
ment, >\ ere re entered by pre-emption or homestead, claimants who have complied 
w ith the laws governing pre-emption or homestead entries, and shall make the proper 
proofs required under such laws, such entries shall be deemed valid, and patents 
shall issue therefor to the person entitled thereto. 

In the argument filed by counsel for the California and Oregon Land 
Company it is urged that the confirmatory provisions of the act of 
April 21, 1876, were intended solely for the benefit of the individual 
claimants who had abandoned such entries, and to sustain that propo- 
sition reference is made to the case of the Northern Pacific Railroad 
Company (20 L. D., 191), wherein it was held (syllabus) : 

The confirmation of entries under section 1, act of April 21, 1876, is solely for 
the benefit .of the individual cluimant, conditioned npon his compliance with law, 
and was not intended to confirm the entry absolutely, as against the right of the 
company, so as to except the land from the grant in favor of any other settler. 

That case does not sustain the contention of counsel. The ruling 
therein laid down applies only to section 1. The second section of the 
act was not involved, and was not considered in that case. 

The case at bar seems clearly to come within the provisions of the 
second section. That section provides "that when at the time of such 
withdrawal '^ (referring to the withdrawal mentioned in section one) 
pre emption or homestead claims existed, which were afterwards aban- 
doned, and " under the decisions and rulings of the Land Department, 
were re-entered by pre-emption or homestead claimants who have com- 



DECISIOXS RELATING TO THE PUBLIC LANDS. 121 

plied with tLe laws g^overnirjjj pre-emption or homestead entries, . . • • 
sach entries shall be valid, and x)atents shall issue therefor to the per- 
son entitled thereto." It does not say, " were re entered by the original 
pre-emption or homestead claimants," but "were re-entered by pre- 
emption or homestead claimant." 

In this case Amelia Goodrich made declaratory statement, and sub- 
mitted proof upon which entry was allowed and final certificate issued. 
It therefore becomes pertinent to inquire whether her said filing and 
entry were made "under the decisions and rulings of the Land Depart- 
ment," as provided in said second section. 

In the case of the Northern Pacific Railroad Company v. Burns, 
decided July 13, 1887 (6 L. D., 21), it was held (syllabus) : 

A homestead claim, existing prior to the receipt of notice of withdrawal or general 
route of the Northern Pacific, excepts the land covered thereby from the operation of 
said withdrawal. 

Snch being the law as then declared by the Department, it was imma- 
terial whether the claim subsequently set up was by tlie original or a 
new claimant; and this view of the law remained in force and undis- 
turbed until the decision of March 12, 1895, in the case of the Northern 
Pacific Eailroad Company (20 L. D., 191), wherein said decision (supra) 
was specifically overruled. 

In this case Amelia Goodrich filed her preemption declaratory state- 
ment in 1889, and made her proof and final entry before the Burns case 
was overruled, and during the time when that case was in force as a 
decision and ruling of the Land Department, and it is therefore clear 
that such filing and entry were made '^ under the decisions and rulings 
of the Land Department." Kor can it be said that the provisions of 
section two of said act operate solely to confirm entries and filings made 
prior to it« passage, for this question was considered in the case of the 
Northern Pacific Railroad Company v. Symons (22 L. D., 686), wherein 
it was held (syllabus) : 

The confirmatory provisions of section 2, act of April 21, 1876, are not limited to 
entries made prior to the passage of said act, hut are equally applicable to entries 
made thereafter. 

See also, to the same effect, Northern Pacific Eailroad Company v. 
Crosswhite (20 L. D., 526). 

It is therefore held that the provisions of said section two are not 
restricted to persons who made -entries under section one of the act 
but apply, in the event of abandonment of such original entrymen, to 
cases where, "under the decisions and rulings of the Land Depart- 
ment," the lands covered by such original entries have been "re-entered 
by pre-emption or homestead claimants who have complied with the 
laws governing pre-emption and homestead entries," and satisfactory 
proofs of such compliance have been submitted. 

The appellee here having made her filing and entry "under the 
decisions and rulings of the Land Department," as shown, and having 



J 



122 DECISIONS RELATING TO THE PUBLIC LANDS. 

furnished the required proofs of her compliance with the law there- 
under, her entry is clearly confirmed by the second section of said act, 
and the decision of your office is therefore affirmed. 



SUBVEY-APPLICATION OF STATE-ACT OF AUGUST 18, 1804. 

State of Washington. 

An application of a State for the survey and reservation of a township nnder the 
act of August 18, 1894, must be denied, where, prior to such application, a survey 
of the township has been ordered for the benefit of settlers. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
(I. H. L.) ruary 6, 1897. (0. J. W.) 

On May 28, 1896, application was duly made by the governor of the 
State of Washington for the survey and reservation, under the act of 
August 18, 1804 (28 Stat., 394), of certain townships, in the application 
designated and described. 

On June 15, 1896, by letter "B,^ of that date, your office denied the 
application on the ground that other parties had applied for the survey 
of the same townships, and that they were under contract for survey on 
the applications and petitions of settlers, and were not subject to reser- 
vation under the terms of the act of August 18, 1894. 

The State appealed from your office decision, alleging the following 
errors: 

1. Error in holding that snch lands were not nnsurveyed within the meaning of 
the act referred to. 

2. Error in holding that the State was not entitled to have the same surveyed and 
reserved from adverse claims in pursuance of said act. 

Before considering said appeal, on Jaiiuary 7, 1897, your office was 
requested to report by virtue of what law or statute the applications of 
the settlers referred to were entertained. The Department is in receipt 
of your letter " E " of January 9, 1897, in response to said request, which 
contains the following report: 

In reply I have the honor to report that section 453 of the Revised Statutes of the 
United States provides as follows : 

''The Commissioner of the General Land Office shall perform, nnder the direction 
of the Secretary of the Interior, all executive duties appertaining to the surveying 
and sale of the public lands of the United states, or in anywise respecting snch 
public lauds.'' 

Sectiou 2218 of the Revised Statutes U. S. further provides as follows; 

''The Secretary of the Interior shall take all the necessary measures for the com- 
pletion of the surveys in the several surveying districts for which surveyors general 
have been, or may be, appointed, at the earliest periods compatible with the pur- 
poses contemplated by law." 

In pursuance of the provisions of law embraced in the quoted statutes this office 
has from year to year issued to the surveyors general of the several surveying dis- 
tricts annual surveying instructions for their information and guidance. 



DECISIONS RELATING TO THE PUBLIC LANDS. 123 

The act of Congress makiDg an appropriation for conveying the public lands for 
the fiscal year ending Jnne 30, 1896, contains the following specific proviso: (29 
Stat., 434) 

"That in expending this appropriation preference shall be given in favor of sur- 
veying townships occupied, in wbole or in part, by actual settlers and of lands 
granted to the States by the act approved February twenty-second, eighteen hundred 
and eighty -nine, and the Acts approved July third and tenth, eighteen hundred and 
ninety, and other surveys shall be confined to lands adapted to agriculture, except 
that the Commissioner of the General Land Office may allow, for the survey and 
re-survey of lands heavily timbered, mountainous, or covered with dense under- 
jrrowth, rates not exceeding thirteen dollars per linear mile for standard and meander 
lines, eleven dollars for township, and seven dollars for section lines, and in cases of 
exceptional difllculties in the surveys, when the work cannot be contracted for at 
these rates, compensation for surveys and resnrveys may be made by said Commis- 
sioner, with the approval of the Secretary of the Interior, at rates not exceeding 
eighteen dollars per linear mile for standard and meander lines, fifteen dollars for 
township, and twelve dollars for section lines: Provided, That in the States of Cali- 
fornia, Idaho, Montana, Oregon, Arizona, Wyoming, Washington, Colorado, and 
Utah, there may he allowed, in the discretion of the Secretary of the Interior, for 
the survey and resnrvey of lands heavily timbered, mountainous, or covered with 
dense undergrowth, rates not exceeding twenty-five dollars for township and twenty 
dollars for section lines." 

In the annual surveying instructions issued for the fiscal year ending June 30, 
1896, which were formally approved by the Department, are the following para- 
graphs, rir.: 

''The law requires that in expending this appropriation preference shall be given 
in favor of surveying townships occupied, in whole or in part, by actual settlers, 
and of lands granted to the States by the act of February 22, 1889, and the acta 
approved July 3 and 10, 1890; hence in taking measures for the letting of contracts, 
it will be your first duty to ascertain the localities in which there are bona fide set- 
tlers, and the funds should be so applied as to benefit the greatest number of settlers. 

'^Contracts for subdivisional surveys, when transmitted to this office, should be 
accompanied by evidences of settlement on the lands embraced in such contracts. 
Said evidences are usually applications or petitions for survey signed by actual set- 
tlers on the lands, together with the affidavits of settlers, setting forth length of 
residence on their claims and the nature, extent, and value of the improvements 
made thereon." 

It will be observed from the foregoing quotations of law, that in all cases where 
the rates of mileage to be allowed for public surveys exceed the so-called interme- 
diate ($13, $11, $7), that the same must be specially authorized by the Secretary of 
the Interior. To that end the Department requires this office to submit the applica- 
tion of settlers for survey, and descriptions of the class and character of the lands, 
in connection with the proposed public surveys, as provided in the annual surveying 
iustructions herein referred to. 

It may be further stated that the existing practice of authorizing the award of 
contracts for public surveys, on the applications of the settlers on the lands, has 
been in vogue since 1886, and that the annual surveying instructions from that time 
to the present, which require said applications, have been uniformly approved by 
the Secretary of the Interior. 

The section of tlie act of August 18, 1894, under which the governor 
of the State of Washington makes the application under consideration, 
is as follows : 

That it shall be lawful for the governors of the States of Washington, Idaho, 
Montana, North Dakota, South Dakota and Wyoming to apply to the Commissioner 



124 DECISIONa RELATING TO THE PUBLIC LANDS. 

of the General Land Office for the survey of any township or townships of pnblic 
land then remaining unsnrveyed in any of the several surveying districtSi with a 
view to satisfy the public laud grants made by the several acts admitting the ssid 
States into the Union to the extent of the full quantity of land called for thereby ; 
and upon the application of said governors the Commissioner of the General Land 
0/nc« shall proceed to immediately notify the surveyor-general of the application 
made by the governor of any of the said States of the application made for the with- 
drawal of said lands, and the surveyor general shall proceed to have the survey or 
surveys so applied for made, as in the cases of surveys of public lands; and the 
lands that may be found to fall witliiu the limits of such township or townships as 
ascertained by the survey, shall be reserved upon the filing of the application for 
survey from any adverse appropriation by settlement or otherwise except under 
rights that may bo found to exist of prior inception, for a period to extend from such 
application for survey until the expiration of sixty days from the date of the filing 
of the township plat of snr\'ey in the proper district land office, during which period 
of sixty days the State may select any such lands not embraced in any valid adverse 
claim, for the satisfaction of such grants, with the condition, however, that the 
governor of the State, within thirty days from the date of such filing of the appli- 
cation for survey, shall cause a notice to be published, which publication shall be 
continued for thirty days from the first publication, in some newspaper of general 
circulation in the viciuity of the lands likely to be embraced in such township or 
townships, giving notice to all parties interested of the fact of such application for 
survey and the exclusive right of selection by the State for the aforesaid period of 
sixty days herein provided for; and after the expiration of such period of sixty days 
any lands which may remain unselected by the State, and not otherwise appropriated 
according to law, shall be subject to diHposal under general laws as other pnblic 
lands: Avd prorided further y That the Commissioner of the General Land Office shall 
give notice immediately of the reservation of any township or townships to the 
local laud office in which the land is situate of the withdrawal of such township or 
townships, for the purpose hereinbefore provided. 

The act also contains this provision : 

Provided that in expending this appropriation preference shall be given in favor 
of surveying townships occupied in part, by actual settlers and of lands granted to 
the States by the act approved February twenty- second, eighteen hundred and 
eighty-nine, and the acts approved July third and July tenth, eighteen hundred and 
ninety, and other surveys shall be confined to lands adapted to agriculture &c. 

Thus while the act makes no specific provision for the survey of 
townships on the application of settlers, it does recognize the right of 
homeseekers to make settlement on nnsurveyed public lands, and 
directs that, in expending the appropriation, preference shall be given 
to the survey of townships occupied in part by actual settlers, and of 
land granted to the States. It was evidently not the purpose of the 
act to put any restriction or limitation upon the rights of actual set- 
tlers, not already existing, and the act is as favorable to them, in so 
far as the lands occupied by them are affected, as to the States. The 
effect is the same as to them whether the survey is made on their peti- 
tion or request, or on the application of the State. In either event 
their existing settlement rights must be respected. Over the future or 
prospective settler, the State is allowed some advantage by this act. 
On its application the State may have the lands in the townships 
apx)lied for withdrawn from settlement for sixty days during which 
period it may select the desirable lands, and leave the rest for settlers. 



DECISIONS RELATING TO THE PUBLIC LANDS. 125 

Tbis privile;;e is in deroj;:atioD of tUe common rights of settlers, aud is 
not to be enlarged, by construction, but tbe act should be given the 
construction which is most favorable to the rights of settlers. The 
townships which remain nusurveyed are those for which the State may 
make application, under this act. The unsurveyed townships may 
therefore be surveyed on the application of the State, or your office 
may direct the survey witiiout such application, if deemed advisable. 

In the case under consideration, before the State filed its application 
your office bad ordered tbe survey of the townships named, and the 
same were put under contract to be surveyed, so that tbey ceased to 
be townships for tbe survey of which applications would thereafter be 
received. 

Inasmuch as prior to the application of tbe State, the survey had been 
determined upon and ordered by your office, with a view to tbe benefit 
of tbe settlers, the townships for tbe survey of which measures bad 
thus been taken, were no longer within tbe provisions of said act of 
August 18^ 1894, and your office properly so held^ and the decision is 
affirmed. 



RAILROAD GRANT— MODDTED LINB— ADJUSTMENT. 

Iowa Eaileoad Land Oo. (On Eevtew). 

The act of Jane 2, 1864, authorized a modification of the line of unconstmcted road 
aa located under the original grant of 1856, and provided for a branch line con- 
necting said modified line with tbe line of the Mississippi and Missouri Railroad 
Company, so as to form a connection with the Union Pacific system. For the 
modified main line the company was entitled '^to the same lands and to the same 
amount of lands per mile," as provided in the original grant, but for the connect- 
ing branch line a new grant was made, to be satisfied from lands within twenty 
miles thereof, henoe in the adjustment of the grant, as made by the two acts of 
Congress, the '' connecting branch line" cannot be regarded as a part of the 
modified main line. 

The act of 1864, so far as the modified main line is concerned, enlarged the source 
from which the amount of lands granted by the act of 1856 might be satisfied; 
but the lands certified prior to said act of 1864, along unconstruoted road, must 
remain a charge against the company in the final adjustment of the grant under 
the two acts. 

Secretary Francis to the Commissioner of the General Land Office, Jan- 
(I. H. L.) uary 30, 1897. (F. W. C.) 

"With your office letter of September 5, 1896, was forwarded a motion, 
filed on behalf of tbe Iowa Eailroad Land Company, snccessor to tbe 
Cedar Eapids and Missouri Eiver Eailroad Company, for review of 
departmental decision of July 9, 1896 (23 L. D., 79), in tbe matter of tbe 
adjustment of tbe grant made by the act of May 15, 1856 (11 Stat., 9), 
and June 2, 1864 (13 Stat., 95). 

The motion is based upon the following assignments of error: 

1. The finding and. holding that the original location is the measure of the grant 
for the constructed line of said road, and that the only purpose of the act of 1864, so 



126 DECISIONS RELATING TO THE PUBLIC LANDS. 

far fls said line is concerned, was to anthorize a change of line and, by enlarging the 
sonrce from which selections might be made for losHes in place along the original 
line, to fully satisfy the amount granted or intended to be granted for the road west 
of Cedar Hapids by the act of 1856. 

2. The finding and holding that Exhibit A of the adjustment submitted by the Com- 
missioner of the General Land Otiioe is correct and proper ''in so far as the extent of 
the grant is concerned." 

3. The failure to find and hold that the 4th section of the act of Jane 2, 1864, is, 
as is found by the supreme court in Herring r. liailroad Company (110 U. S., 27), a 
new grant, and that under it the company is entitled to six sections of land per mile 
for every mile of road constructed by said company west of Cedar Rapids. 

4. The finding and holding that the 2,569.75 acres erroneously certified to the rail- 
road company, they having been theretofore disposed of by the United States, being 
outstanding must remain a charge to the grant unless reconveyed to the United 
States by said company. 

5. The finding and holding that the 76,916.75 acres certified to the State and sold 
by the Iowa Central Air Line Railroad Company out of the grant of 1856, prior to 
resumption by the State of Iowa, and to the enactment of the grant of 1864, should 
not be deducted from the grant made for the modified line by the act of June 2, 1864. 

The first three assignments of error question the directions given as 
to the measure of the grant. 

Your office letter submitting this matter presented five plans of adjust- 
ment, the first, which was adopted in the opinion under review, being 
as follows : 

Exhibit A is an adjustment upon the theory that the company takes under the 
original grant from Cedar Rapids, and that the only additional right given the com- 
pany under the act of 1864 was to satisfy deficiencies within the grant in place, by 
resorting to the even numbered sections within the six mile limits and both even and 
odd within the fifteen mile limits, and if there was still a deficiency to resort to the 
even and odd sections along the modified line within twenty miles thereof. Under 
this settlement there have been excess approvals to the company of 57,570.24 acres. 

To understand the real position of the company it is necessary to 
review, somewhat, the history of the grant. 

The Iowa Central Air Line Company, upon which the State originally 
conferred the grant, filed a map of definite location of the line of road 
October 31, 1856, which was dul^' accepted and upon which the limits 
of the grant were adjusted and withdrawal ordered. 

The road provided for by the act of 1856 was — 

from Lyons City to a point of intersection with the main line of the Iowa Centrml 
Air Line Railroad, near Maquoketa, thence on said main line, running aa near as 
practicable to the forty-second parallel across the State, to the Missouri River. 

Said Air Line Company failed to construct any part of the road and 
the State resumed the grant in 1860 and conferred the same ui>on the 
Cedar Bapids and Missouri Eiver Bailroad Company. 

Prior to this time, however, a road had been built by the Chicago, 
Iowa and Nebraska Bailroad Company (not a land grant road), from a 
point on the Mississippi Biver within three miles of Lyons City to Cedar 
Bapids, and practically upon the location theretofore made between 
said points by the Iowa Central Air Line Company. 



DECISIONS RELATING TO THE PUBLIC LANDS. 127 

The Cedar Kapids Company therefore began the construction of its 
road at Cedar liapids and, prior to the year 1SG4, had completed about 
one hundred miles, or, as appears from j'our letter, to Nevada, Iowa. 

This was the condition of affairs at tlie time of the x)assnge of the act 
of June 2, 1864 (supra), the fourth section of which provides: 

That tlie Cedai Rapids and Missouri River Railroad Company, a corporation estab- 
lished under the laws of the State of Iowa, and to which the said state granted a 
portion of the land mentioned in the title to this act, may modify or change the 
location of the uncompleted portion of its line, as shown by the map thereof now on 
file in the general land office of the United States, so as to secure a better and more 
expeditions line to the Missouri River, and to a connection with the Iowa branch of 
the Union Pacific Railroad ; and for the purpose of facilitating the more immediate 
construction of a line of railroads across the State of Iowa, to connect with the Iowa 
branch of the Union Pacific Railroad Company, aforesaid, the said Cedar Rapids 
and Missouri River Railroad Company is hereby authorized to connect its line by a 
branch with the line of the Mississippi and Missouri Railroad Company ; and the 
aaid Cedar Bapids and Missouri River Railroad Company shall be entitled for such 
modified line to the same lands and to the same amount of lands per mile, and for 
sacb connecting branch the same amount of land per miloi as originally granted to 
aid in the construction of its main line, subject to the conditions and forfeitures 
mentioned in the original grant, and, for the said purpose, right of way through the 
public lands of the United States is hereby granted to said company. And it is fur- 
ther provided, That whenever said modified main line shall have been established or 
such connecting line located, the said Cedar Rapids and Missouri River Railroad 
Company shall file in the general land office of the United States a map definitely show- 
ing such modified line and such connecting branch aforesaid ; and the Secretary of the 
Interior shall reserve and cause to be certified and conveyed to said company, from 
time to time, as the work progresses on the main line, out of any public lands now 
belonging to the United States, not sold, reserved, or otherwise disposed of, or to 
which a pre-emption right or right of homestead settlement has not attached, and 
on which a bona fide settlement and improvement has not been made under color 
of title derived from the United States or from the State of Iowa, within fifteen 
miles of the original main line, an amount of land equal to that originally authorized 
to be granted to aid in the construction of the said road by the act to which this is 
an amendment. And if the amount of lands per mile granted, or intended to be 
granted, by the original act to aid in the construction of said railroad shall not be 
found within the limits of the fifteen miles therein prescribed, then such selections 
may be made along said modified line and connecting branch within twenty miles 
thereof: Provided, hotoever, That such new located or modified line shall pass through 
or near Boonsboro", in Boon county, and intersect Boyer river not further south 
than a point at or near Dennison, in Crawford county: And Providedf further, That 
in case the main line shall be so changed or modified as not to reach the Missouri 
River at or near the forty-second parallel north latitude, it shall be the duty of said 
company, within a reasonable time after the completion of its road to the Missouri 
river, to construct a branch road to some point in Monona county, in or at Onawa 
City ; and to aid in the construction of such branch the same amount of lands x>er 
mile are hereby granted as for the main line, and the same shall be reserved and 
certified in the same manner; said lands to be selected from any of the unappropri- 
ated lands as hereinbefore described within twenty miles of said main line and 
branch ; and said company shall file with the Secretary of the Interior a map of the 
location of the said branch: And promded further, That the lands hereby granted to 
aid in the construction of the connecting branch aforesaid shall not vest in said 
company nor be encumbered or disposed of except in the following manner : When 
the governor of the State of Iowa shall certify to the Secretary of the Interior that 



128 DECISIONS RELATING TO THE PUBLIC LANDS. 

said company bas completed in good ranning order a section of twenty consecntiTe 
miles of the main line of said road west of Nevada, then the Secretary shall convey 
to said company one third, and no more, of the lands gpranted for said connectin*; 
branch. And when said company shall complete an additional section of twenty 
cousecative miles, and famish the Secretary of the Interior with proof as aforesaid, 
then the said secretary may convey to the said company another third of the lands 
granted for said connecting branch; and when said company shall complete an 
additional section of twenty miles, making in all sixty miles west of Nevada, the 
secretary, npon proof famished as aforesaid, may convey to the said company the 
remainder of said lands to aid in the construction of said connecting branch : Pro- 
vided, however, That no lands shall be conveyed to said company on account of said 
connecting branch road until the governor of the State of Iowa shall certify to the 
Secretary of the Interior that the same shall have been completed as a first-class 
railroad. And no land shall be conveyed to said company sitaate and lying within 
fifteen miles of the original line of the Mississippi and Missouri Railroad, as laid 
down on a map on file in the general land-office : Provided, further. That it shall be 
the duty of the Secretary of the Interior, and he is hereby required, to reserve a 
quantity of land embraced in the grant described in this section, sufficient, in the 
opinion of the governor of Iowa, to secure the construction of a branch railroad 
from the town of Lyons, in the State of Iowa, so as to connect with the main line 
in or west of the town of Clinton in said state, nntil the governor of said state shall 
certify that said branch railroad is completed according to the reqairements of the 
laws of said state : Provided, further. That nothing herein contained shall be con- 
strued as to release said company from its obligation to complete the said main line 
within the time mentioned in the original grant: Provided, further, That nothing in 
this act shall be construed to interfere with, or in any manner impair, any rights 
acquired by any railroad company named in the act to which this is an amendment, 
or the rights of any corporation, person or persons, acquired through any such com- 
pany ; nor shall it be construed to impair any vested right of property, but such 
rights are hereby reserved and confirmed : Provided, however. That no lands shall be 
conveyed to any compariy or party whatsoever, under the provisions of this act and 
the act amended by this act, which have been settled upon and improved in good 
faith by a bona fide inhabitant, under color of title derived firom the United States 
or from the State of Iowa adverse to the grant made by this act or the act to which 
this act is an amendment. But each of said companies may select an equal quantity 
of public Lands as described in this act within the distance of twenty miles of the 
line of each of said roads in lien of lauds thus settled upon and improved by bona 
fide inhabitants in good faith under color of title as aforesaid. 

While this act aathorized a chauge in the location of the unconstructed 
portion of the road, yet, it still provided that it should be built to the 
Missouri Elver, but permitted a change in order to secure a ''more 
expeditious line." 

The Pacific railroad system was not in existence at the time of the 
passage of the original act under which this company claims, viz., May 
15, 1856, and a further and new object was included in the legislation 
made by the act of 1864, viz., a connection with the Iowa branch of the 
Union Pacific Railway. 

To accoinx)lish this latter purpose a branch line was provided for, on 
account of which a new grant was made, and this branch is referred to 
as the ''connecting branch." 

By the act of 1856 the line was to run as near as practicable to the 
forty-second parallel across the State of Iowa. Measurement made of 



DECISIONS REJ.ATING TO THE PUBLIC LANDS. 129 

tbe locations shows that the old line of 1856 diverges to the north of 
that parallel tweuty-foar miles, while the modified line diverges to the 
soath thirty miles, measured to a connection with the Sioux City and 
Pacific liailroad at California Junction. 

By letter of July 5, 1805, William T. Steiger, as agent of the com- 
pany, filed in this Department a map showing the amended line of loca- 
tion of said Cedar Rapids and Missouri River Railroad. 

Said letter contained the following: ' 

I have the honor to traDSuiit herewith the letter of W. W. Walker, Esq., Vice 
Preeident Cedar Rapids aod Mo. Riv. R. R. Co., addreesed to you on the 19th instant, 
together with the accompnnying maps daly authenticated of the amended route of 
said road from Cedar Rapids to the Missouri River, which I heg leave to plare on 
tile as the hasis of the adjustment of the additional grant of 2nd June 1864. 

This map shows a connection with the ISioux City and Pacific Rail- 
road at California Junction, about three miles from the Missouri River, 
and with this connection the river is reached as the Sioux City and 
Pacific Railroad crosses the Missouri River. 

By letter of December 19, 1867, Hon. J. I. Blair, President of the 
Cedar Rapids and Missouri River Railroad, filed a second map, with a 
request that it be attached to the one before filed. 

This map shows a line leaving the location made in 1865, at Missouri 
Valley, about six miles east of California Junction, and runs nearly 
due south for about twenty-one miles to a connection with the Missis- 
sippi and Missouri River Railroad, now the Chicago, Rock Island and 
Pacific Railroad, at Council BlufiTs. 

It is claimed by the company that this piece of road last described 
should be considered as a part of the amended main line. 

This contention, if granted, makes the amended line, as constructed, 
271.6 miles long, and it is claimed that this becomes the basis for 
the adjustment of the grant under the act of 1864, which is to be sat- 
isfied firom the limits of the old location of 1856, as far as possible, the 
deficiency to be made up along the limits of the modified line, and that 
this deficiency is not only of lands lost in place along the old location, 
but that the constructed line, being longer than the old location, the 
grant was commensurably increased, and that this increase is to be 
also taken along the modified line. 

In the decision under review it was held that (syllabus) : 

The grant to the State of Iowa hy the acts of May 15, 1856, and Jane 2, 1864, is a 
grant in place, the extent of which is determined by the location nnder the original 
grant, and the amount of lands earned thereunder ascertaine<l by the line of road 
constrncted west of Cedar Rapids, with the additional right under the act of 1864, 
to satisfy deficiencies within the grant in place by resorting to eyen numbered sec- 
tions lAthiu the six mile limits, and both even and odd within the fifteen mile 
limits, and if there is still a deficiency to resort to the eyen and odd sections along 
the modified line within twenty miles thereof. 

After a careful review of the matter this position is adhered to, and 
even if the company's contention as to the length of the modified line 
10671— VOL 24 9 



130 DECISIONS BELATING TO THE PUBLIC LANDS. 

l>e acceded to, yet, the graut made by the act of 1856 for the main 
line cannot be enlarged nnder the terms of the act of 1864 for the 
^^modified main line.'^ 

For this modified main line the company was to be entitled ^*- to the 
-same lands and to the same amount of lands per mile," and it was 
provided that — 

-the Secretary of the Interior shall reserve and cause to be certified and conveyed 
tto said company, from time to time, as the work progresses on the main linei . . . 
'Within fifteen miles of the original main line, an amount of land equal to that orig- 
inally authorized to be granted to aid in the construction of the said road by the act 
to which this is an amendment. And if the amount of lands per mile granted, or 
intended to be grante<l| by the original act to aid in the construction of said railroad 
shall not be found within the limits of the fifteen miles therein prescribed, then 
such selections may be made along said modified line and connecting branch within 
twenty miles thereof. 

The act of 1856, fourth section, provides that — 

And when the governor of said State shall certify to the Secretary of the Interior 
that any twenty continuous miles of any of said roads is completed, then another 
quantity of land hereby granted, not to exceed one hundred and twenty sections 
for each of said roads having twenty continuous miles completed as aforesaid, and 
included within a continuous length of twenty miles of each of such roads, may be 
«old, and so from time to time until said roads are completed; and if any of said 
roads are not completed within ten years, no further sale shall be made, and the 
lands unsold shall revert to the United States. 

Under this legislation, when twenty miles were certified as conslxacted 
along the modified main line, the company was authorized to sell one 
hundred and twenty sections along the original location, if the same 
shall be found within a continuous line of twenty miles along said origi- 
nal location, and so on until the entire road was built. 

No new grant in place was made along the modified main line, but 
the lands within twenty miles thereof might be resorted to in order to 
satisfy any deficiency not to be found within the limits along the original 
location. 

While it is undoubtedly true, as held by the supreme court in the Her- 
ring case (110 U. 8., 27), that "it has been the invariable policy of Con- 
fess to measure the amount of public lands granted to a land-grant 
railroad by the length of the road as actually constructed, and not by 
its length as originally located," when the entirchne as originally located 
is not constructed, as was the case with the Oedar Bapids grant, yet, it 
has never been held by that court that the grant, where one in place, as 
is the grant of 1856, which acquired precision by location, can be 
enlarged, by showing that the constructed road is longer than tlie 
located line. 

In my opinion, however, the modified main line as provided for in the 
.act of 1864, was designed to be a more direct and shorter route to the 
Missouri River than that shown by the location made under the act of 
1856; further, that the location shown upon the map of 1865, satisfies 



DECISIONS RELATING TO THE PUBLIC LANDS. 131 

the terms for the modified main line, and that the location shown upon 
the map filed in 18G7, was intended for, and should be held to be the 
** connecting branch," provided for in the act of 1804, for which a new 
grant was made, but which mast be satisfied from the lands within 
twenty miles thereof 

It is true that the supreme court, in the Herring case (supra), held 
that the map of 18G5 showed only a ])art of the modified line and that 
it was not completed until the filing of the map on December 1, 1867 
(evidently meaning the map filed December 19, 1867)) and the company 
urges that this holding is conclusive upon the Department, and that 
the line between Missouri Valley and Council Bluffs must be recognized 
as a part of the modified line and not as the connecting branch. 

The question before the court in said case involved the recognition of 
certain entries made after the location of 1865. 

As before stated, the act of 1864 had two objects, viz., the building 
of a more expeditious line to the Missouri River and the connection of 
this line with the Mississippi and Missouri River Railroad so as to form 
a running connection with the Iowa branch of the Union Pacific Rail- 
way; further, it coupled the two together so as to require that both 
objects be accomplished. 

This is clearly shown from several provisions of the act of 1864. 

To provide against the abandonment of the main line west of the 
point at which the connecting branch might be established, the act of 
1864 provided, that the lands should not be conveyed on account of the 
connecting branch except upon the condition that — 

When the governor of ihe State of Iowa shall certify to the Secretary of the 
Interior that said company has completed tn good ranning order a section of twenty 
consecntive miles of the main line of said road west of Nevada, then the Secretary 
shall convey to said company one-third, and no more, of the lands granted for said 
connecting hranch. And when said company shall complete an additional section 
of twenty consecutive miles, and famish the Secretary of the Interior with proof as 
aforesaid, then the said Secretary may convey to the said company another third of 
the lands granted for said connecting hranch ; and when said company shall com- 
plete an additional section of twenty miles, making in all sixty miles west of 
Nevada, the Secretary, upon proof famished as aforesaid, may convey to the said 
company the remainder of said lands to aid in the construction of said connecting 
branch. 

It further provided — 

That snch new located or modified line shall pass throngh Boonsboro', in Boon 
coanty, and intersect the Boyer river not further south than a point at or near 
Dennison, in Crawford county. 

Again, in the matter of the location of the modified line and the 
connecting branch, it provided — 

That whenever said modified main line shall have been established or such con- 
necting line located, the said Cedar Rapids and Missouri River Railroad Company 
shall file in the General Land Office of the United States a map definitely showing 
such modified line and such connecting branch aforesaid. 



132 DECISIONS RELATING TO THE PUBLIC LANDS. 

As the act requires that the company shall file a map of the modified 
line and connecting branch before a withdrawal was to be made, it wrs 
perhaps this fact, viz :, the coupling of the two, that led the court to 
hold that until the filing of the map in 1867, the whole line of the road 
was not established. 

While the court uses the term ^'modified line,'' it does not seem to 
have been used in the restricted sense as relating to the modified main 
line, but rather the entire line necessary to accomplish the full phri)oscs 
of the grant. 

That the portion of the road between St. John and Council Itluffs 
was not considered by the company as a part of the modified main 
line, is clearly show from a brief filed by William T. Steiger in 1873, as 
attorney for the company, before the committee of i)ublic lands in the 
United States Senate, relative to a bill affecting the grant for the 
Onawa branch of said road, copy of which is found in the papers on 
file in yonr ofiice relative to said road. 

In this brief he states, on page eight, under the fourth objection to 
the proposed legislation, as follows: 

The Onawa City branch was huilt, and the best connection — indeed for engineer- 
ing reasons the only one — thereby made between the company's new line uf road 
and the city, which branch, with that required by the law to connect with the 
Mississippi and Missouri road, secured to Onawa City almost a direct connection, 
not only with the Cedar Rapids line of road, but also with Council Bluffs, and that 
important point in the great through line of the Mississippi and Missouri, (novr 
Chicago, Rock Island, and Pacific road,) as will be seen on inspection of the maps 
on file in the Department of the Interior. 

In order that the attorney's i)08ition may be fully understood I have 
attached a reduced copy of a map that accompanied the report. 

As to the previous position of the Department on the question I 
have but to refer to letter written by Commissioner Burdett to Hon. 
Addison Oliver, House of Representatives, dated January 19, 187G, in 
which it is stated : 

Your second question is, ''Where does the 'modified line' of said company, under 
act of June 2d, 1864, begin, and terminate f How long is it and how much land has 
it received therefor f* 

The modified line begins at Cedar Rapids, or near there, at the western terminus 
of the line built prior to 1864, and terminates at Missouri Valley, indicated on tbe 
map by the letter D. 

From what has been said it is apparent that the approvals heretofore 
made on account of this grant for the modified main line, are in excess 
of that granted by the acts named, and that suit will be necessary. 

I have therefore to modify the previous decision of this Department 
in so far as to direct that the portion of the road between Missouri Valley 
and Council Bluffs be not considered as a part of the modified main 
line, but as the "connecting branch," for which a new grant was made 
by the act of 1864, but which must be satisfied from the lands within 
twenty miles thereof. 



DECISIONS BELATIN6 TO THE PUBLIC LANDS. 



133 



This branch is all withiu the fifteen mile limits of the grant for the 
Mississippi and Missouri Eiver Eailroad, and the act of 1864 provides 
that '^no land shall be conveyed to said company situate and lying 
within fifteen miles of the original line of the Mississippi and Missouri 
Bailroad, as laid down on a map on file in the General Land Office.'' 




46 45 44- 43 42 41 40 39 

I learn upon inquiry at your office that limits were never established 
upon this line and presumably for the reason above given. 

This, however, is not the question before the Department, as the 
company does not seem to be now claiming anything on account of the 
"connecting branch,'' as such. 



134 DECISIONS RELATING TO THE PUBLIC LANDS. 

This disposes of the first three assignments of error. 
The fourth assignment is — ' 

The tinding and holding that the 2,569.75 acres erroneoasly certified to the railroad 
company, they having been theretofore disposed of by the United States being out- 
standing must remain a charge to the grant unless reconveyed to the United States 
by said company. 

It is clear that certifications made on account of this grant after 
patents had issued to other parties conveyed no title, and strictly 
speaking cannot be considered as a charge upon the grant, but as the 
grant was in process of adjustment, if the company claimed the lands 
a final adjustment would be impossible until the rights of the company, 
not under the certifications but under its grant, had been determined. 

If the company lays no claim to these lands, a simple release or quit 
claim would remove the cloud from the title of the first patentees, and 
thereupon the company would be relieved of the charge made in part 
satisfaction of its grant. 

The fifth and last assignment of error ii 



The finding and holding that the 76,916.75 acres certified to the State and sold by 
the Iowa Central Air Line Railroad Company out of the grant of 1856, prior to 
resumption by the State of Iowa, and to the enactment of the grant of 1864, should 
not be deducted from the grant made for the modified line by the act .of Jnne 
2, 1864. 

The company's contention in support of this assignment rests u]K>n 
the assumption that the act of 1864 made an entirely new grant for the 
nnconstructed part of its road free from any charge on account of the 
grant of 1856, to which I am unable to accede. 

As stated in the opinion under review — 

These lands were certified on account of the grant made by the act of 1856, and 
this claim for deduction seems to rest upon the ground that the company receiTing 
the lands did not earn the same, and that the present company neyer received any 
benefit from such certification, and therefore should not be charged with the same. 

Having held that the purpose of the act of 1864 was merely to enlarge the source 
from which the amount of lands granted by the act of 1856 might be satisfied, it 
follows that indemnity can not be allowed for lands certified under the act of 1856 
and prior to the passage of the act of 1864, and this claim for deduction must be 
denied. 

After a very thorough investigation and careful consideration of the 
legislation upon the subject of this grant and of the decisions of 
the court and this Department relative thereto, I see no reason to 
depart from the previous decision of this Department, except in the 
particulars herein named, and the motion is therefore accordingly 
denied, and you are directed to revise the adjustment in accordance 
with the directions herein given. 

The excess in approvals should be identified, after which formal 
demand should be made upon the company for reconveyance of the 
lands, or, in the event that they have been disposed of to bona fide 
purchasers, for their value. 



DECISIONS RELATING TO THE PUBLIC LANDS. 135 

HOMSSTEAB ENTRY-AMENDMEN'»-ADVER8E CLAIM. 

CALLIOOTTE V. Geeb. 

The right to amend an entry to correspond with the settlement, may be awarded a» 
against an intervening entrymau if priority of settlement is shown by the appli- 
cant, and it does not appear that he is estopped by bis own acts f^om setting n^ 
his right as against the adverse claimant. 

Secretary Francis to the Commissioner of the General Land Office, Jan- 
(I. H. L.) uary 18, 1897. (C. J. W.) 

On September 27, 1893, plaintiff Callicotte made homestead entiy^ 
No. 947, for the SB. J of Sec. 12, T. 27 N., R. 1 W., Perry, Oklahoma, 
under the mistaken apprehension, as he alleges, that this was the 
proper description of the quarter section on which he had made settle- 
ment on the day of the opening, September 16, 1893. On September 
23, 1893, defendant Geer made homestead entry, No. 607, for the NE. i 
of Sec. 12, T. 27 N., R. 1 W., which turned out to be the quarter section 
on which Callicotte made settlement on the day of the opening. After 
the discovery of the mistake, on November 18, 1893, Callicotte made 
application to amend his entry, so as to substitute the land entered by 
defendant, to wit, the NE. J of Sec. 12, T. 27 N., R. 1 W., for that entered 
by himself through mistake, and on the same day he filed affidavit of 
contest against defendant's entry, alleging prior settlement. By direc- 
tion of your office, action on the application to amend Callicotte's entry 
was withheld to await final disposition of his contest, and a hearing 
ordered for that purpose on February 23, 1895, both parties being 
present. The plaintiff closed his testimony on February 25, 1895, and 
defendant, without offering any testimony, moved to dismiss the con- 
test. The local officers overruled the motion, and thereafter rendered 
a decision in favor of contestant, and recommended the cancellation o£ 
defendant's entry. From this decision Geer appealed, and on Septem-. 
ber 18, 1895, your office affirmed the decision of the local officers, and 
held defendant's entry for cancellation. Defendant made further appeal 
to the Department, and the case is now to be considered. 

The following allegations of error are made: 

Ist. That it was error to hold that the initial acts of settlement claimed hy Calli- 
cotte were followed within a reasonable time hy residence and improvements. 

2d. Error in not holding that contestant had exhausted his homestead rights, in 
making homestead entry npon the adjoining tract of land. 

3d. Error in awarding to contestant preference right of entry over defendant an<f 
holding this entry for cancellation. 

4th. Error in not holding that plaintiff was estopped by his acts in making ont 
defendant's application to enter from setting up a prior claim against defendant. 

It appears firom the record that Callicotte's entry, -NTo. 947, made by 
mistake for the wrong land, was contested by a man named Sheror, and 
that without pecuniary consideration Callicotte relinquished this entry. 



13ff DECISIONS RELATING TO THE PUBLIC LANDS. 

Since your office decision was rendered, and pending the consideration 
of the case here, defendant Geer has filed an affidavit, under date of 
March 17, 1896, in which he charges that plaintiff has since the hearing 
abandoned the land, and asking for leave to submit proof as to the 
Same, and that the case be re-oi)ened for that puri)08e. This motion 
can not be entertained, and the case will be disposed of on the record 
as it exists. 

The evidence shows that a little before one o^clock P. M., on Septem- 
ber 16, 1893, the plaintiff reached the land in controversy, with a valise, 
canteen, coffee-sack of provisions, frying pan, blanket, umbrella, a 
spade and axe; that there was no one on the land at the time, and that 
be set his umbrella up as a stake and left his other things with it, and 
went over to a crowd of men a fourth of a mile away and introduced 
himself and took their names; that while talking to these men, he saw 
a wagon drive up about a foui*th of a mile north and west of his stake: 
that a man got out of the wagon and came to where they were talking; 
that plaintiff took his name and gave his, and called attention of the 
men to witness that he claimed the land where his stake (umbrella) was 
stan'ding, and that if the man who was on the wagon was on his tract, 
they knew that plaintiff was there first. The man gave his name as 
(reer (defendant in this case^; that defendant replied that he did not 
come there to make trouble, and that if he was on plaintiff's claim, he 
would not cause him trouble. This occurred thirty to fift}'' minutes 
after plaintiff' set his stake. The question of wood and water then 
arose, and there being no spade or axe, except plaintiff's, it was arranged 
to go to the creek half a mile east and dig for water and get wood. 
Defendant drove his team by plaintiff's stake, and got his spade and 
axe, and drove to the creek, where they dug for water, and got a load 
of wood, and went back to where Geer had first stopped with his wagon, 
and camped all night. Next morning plaintiff and Geer attempted to 
locate the lines and corners of the tracts, and came to the conclusion 
that plaintiff was on the SE. ^ of Section 12, and that defendant was 
on the NE. |; plaintiff threw up a mound, three feet in diameter and 
a foot and a half high, on which he planted a stake, with a white flag 
attached, and then he and defendant started to the land office to file, 
arriving there Sunday night, September 17, 1893. Plaintiff formed a 
company (No. 181), consisting of himself (No. 1), defendant next, and 
then others, until the number reached ten. Plaintiff' being a lawyer, 
made out his own and defendant's papers. Defendant left his place in 
company No. 181, and got a place in another company, and was thereby 
enabled to file on September 23, 1893, four days earlier than he could 
have filed if he had remained in company No. 181. About October 1, 
1893, plaintiff first learned that he had made a mistake, and had filed 
on the SE. ^ of Sec. 12, instead of the NE. ^, where his stake was still 
standing, and when he made out defendant's ])aper8 he did not know it 
was for the land on which he (plaintiff*) had settled. About October 1^ 



DECISIONS RELATING TO THE PUBLIC LANDS. 137 

18d3, plaintiff plowed one acre near his stake on the land, amd about 
the 1st of November following he plowed around the whole tract, and 
built a sod house. On December 14, 1893, he went ui)on the land, with 
horses, wagons, plows, harrow, cooking utensils, stove, and bedding, 
and proceeded to build a house, in which he and his eldest sou resided, 
until he built a six-room house, into which he moved, with his family, 
January 15, 1894. He has fenced the whole of the tract, dug a well, 
and plowed and cultivated fifty acres. The improvements are worth 
seven or eight hundred dollars. Upon this state of facts the defendant 
insists that the plaintiff is not entitled to the land, and that it was 
error to so hold. There can be no question under the record but that 
plaintiff was the prior settler on the land. His acts of settlement were 
sufficient to segregate the land, and were followed in due time by resi- 
dence and valuable improvements. 

Unless the plaintiff has done something which will operate against 
him as an estoppel, he is entitled to all the rights of a prior settler 
upon the land. Two things are insisted upon by way of estoppel: 
First. That plaintiff has exhausted his homestead right, notwithstand- 
ing bis relinquishment, without compensation, of the entry made by 
mistake. Second. That having assisted defendant in preparing his 
entry papers, he is estopped from attacking the entry. It is perfectly 
apparent that this controversy grows out of the mutual mistake of the 
parties as to the proper description of the quarter-section on which 
their resi>ective settlements were made. There is* no fraud connected 
with the acts of either, and it is clear that the mistake in the descrip- 
tion of the land entered by each was an honest mistake upon the part 
of both. It was mutual, and neither can be either benefited or injured 
by it, in reference to the other. The entry by plaintiff of the SE. J, 
ux)on which he had not settled, and upon which another party was, at 
the time, a settler (plaintiff^s entry being the result of a mistake), did 
not exhaust his homestead rights, and upon relinquishment of such 
mistaken entry, without any benefit, it ceased to be a legal hindrance 
to a second entry. There is, therefore, no reason why the rights of 
these two parties should not be made to depend upon the priority of 
their origin. As defendant has introduced no testimony, and shown 
no actual settlement, it is a mere question of whether plaintiff's settle- 
ment antedated defendant's entry. This fact appears from the evi- 
dence, yonr office so found, and your office decision is affirmed. 



138 DECISIONS RELATING TO THE PUBLIC LANDS. 

VLAlUiOJLD GRAJTT-PATENT-SUCCESSOR IN INTEBEfiTT. 

NoBTHEftN Pacific R. R. Co. 

Under the graDt to the Northern Pacific Railroad Company patents should iasne to 
that company and not to a grantee thereof. 

In the preparation of lists of lands granted to aid in the constmction of railroadB, 
the lands should be listed to the grantee company or corporation when it is in 
existence. 

Secretary Francis to the Commissioner of the General Land Office, Feb- 
ruary 6, 1897. (J. I. P,) 

From time to time there have beeu transmitted from voor office for 
the consideration and approval of this Department varions lists of 
lands selected by the Northern Pacific Railroad Company as inuring to 
the Northern Pacific Railway Company as the successor of the ^lorthem 
Pacific Railroad Company under the grant to that company of July 2y 
1864, and the joint resolution of May 31, 1870. 

It has been invariably held by this Department that a right to a 
patent from the United States will not be traced beyond the original 
grantee. Re Harrison (2 L. D., 707) ; re Tower (2 L. D., 779; 12 L. D., 
116). There are obvious reasons for this ruling of the Department, 
If the duty of examining into the sufficiency of transfers m ide from 
time to time by the railroad corporations, of the country, or by the 
settlers upon the public lands after a right of disposition shall have 
accrued, be assumed by this Department, a mass of qtuisi judicial work 
must be disposed of which will seriously embarrass the ordinary admin- 
istration of its affairs. ^ 

Moreover, under the law as it now stands, if this Department erro- 
neously certifies lands to a railroad corporation, which are not included 
within the grant, the certification is void; but if the list be certified m 
favor of a bona fide grantee the title of the grantee is good and the 
only recourse of the government is against the corporation. In many 
cases such recourse would be unavailing. I therefore conclude, for 
administrative reasons, that it will be unwise to certify lists in favor of 
the Northern Pacific Railway Company. 

Upon careful consideration of the language of the grant to the 
Northern Pacific Railroad Company, I do not think it my duty to patent 
lands to a grantee of that company. The act provides in terms that 
patents shall be made to the Northern Pacific Railroad Company, and 
although the grant is to said company, its successors and assigns, yet 
I do not believe that the Department can be required to depart from 
the ordinary course of business heretofore followed in other cases. 

In view of the foregoing I am of the opinion that in the preparation 
of lists of lands, granted to aid in the construction of railroads, the 
lands should always be listed to the grantee company or corporation 
when it is in existence. If the grantee company or corporation has 



DECISIONS BELATINQ TO THE PUBLIC I.Al!m6« 139 

ceased to exist or has been absorbed or amalgamated or identified with 
another company or corporation, then it might be proper to list the 
lands to the latter company as snccessor of the grantee company or 
corporation. Bnt when the lands are so listed the preamble of the list 
shoald clearly set forth the character of the evidence upon which that 
action is based, for the information of the Secretary of the Interior, 
whose approval of such lists may be asked. 

You are therefore directed to be governed in the future by these 
instructions in preparing for my approval list of lands granted to aid 
in the construction of railroads. 



CONFIRMATIOX-SECTION 7, ACT OF MARCH 3, 1801-PATENT. 

Smith et al. v. Murphy's Heirs. 

As between a purchaser from the entryman and one holding under a subsequent tax 
sale of the land, the benefit of the confirmatory proyisions of section 7, act of 
March 3, 1891, must be accorded to the holder of the tax title. 

Under an entry confirmed by said section, patent should issue in the name of the 
entry man, though his death may be disclosed by the record. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
(I, H. L.) ruary 6y 1897. (P. J. O.) 

The land involved in this controversy is the SW. J of the NE. J, Sec. 
32, Tp. 20 S., E. 65 W., Pueblo, Colorado, land district. 

There being bnt a single question involved in this stage of this con- 
troversy, it is not necessary to recapitulate all the record facts in 
relation to the history of this tract. It is only necessary to state such 
facts as will give a clear uuderstanding of the single issue. 

It appears that on !Noveinber 9, 1873, James Clark made pre emption 
cash entry of the tract, and on the same day, for a valuable consider- 
atiouy transferred the same to Margaret Murphy,- that Muri)hy died 
February 1, 1879; that Clark also departed this life during that year. 

As the result of a contest against the entry of Clark, by one T. F. 
McAllister, which was finally dismissed by your ofSce, and no appeal 
taken, the heirs of Margaret Murphy, pending the contest, applied to 
have the entry confirmed and passed to patent under section 7, act of 
March 3, 1891 (26 Stat., 1095). Daniel L. Smith and B. Sweet also 
made a similar application, on the ground that they were transferees 
of the title of Margaret Murphy, by reason of the fact that they had 
purchased the land from Pueblo county, which had bid it in at a tax 
sale, and subsequently transferred it to Smith, who deeded to Sweet 
an undivided half interest in the tract. 

In deciding these questions presented, your office held that: 

From the abstract of title covering the above land and filed in this case, and the 
affidavits of James Murphy and the heirs of Margaret Murphy, deceased, as far as 
heard from, I find that said land has not been reconveyed to said James Clark, nor 



140 DECISIONS RELATING TO THE PUBLIC LANDS. 

to his heirs, that the heira of Margaret Murphy uotified, ask for coofirmation of 
eaid entry nnder the seventh section of the act of March 3, 1891. I further find that 
final receipt was issued to said James Clark November 9, 1878, and that he disposed 
of tho same after final entry to a bona fide purchaser, for a valuable consideration, 
before the first day of March, 1888. Said entry will, therefore, be approved for 
patent by virtue of the 7th section of the act of March 3, 1891, and the same will be 
passed to patent for the heirs of James Clark, deceased. The contest of McAllister 
is dismissed. 

Notify the parties of this decision, and McAllister and Smith and Sweet of their 
right of appeal. 

Whereupon, Smith and Sweet prosecute this appeal, alleging error 
in holding that they were not transferees within the meaning of said 
section 7, and error in holding that the heirs of Murphy had any 
interest whatever in the land. 

It is clear that the heirs of Clark have no interest in this tract. He 
had conveyed all his interest prior to his death, and there was there- 
fore nothing to descend to his heirs. The decision of your office, there- 
fore, that the entry "will be passed to patent for the heirs of James 
Clark,'' is clearly erroneous. I take it that this order was made in 
view of the doctrine announced in Clara Huls (9 L. D., 401), wherein 
it was decided that " where the death of the homesteader is disclosed 
by the record, patent should issue in the name of the heirs generally." 
But that ruling was modified subsequent to the decision of your office 
in Joseph Ellis (21 L. D., 377), wherein it was held that patent sboiild 
issue in the nsime of the entryroan, though his death be disclosed by 
the record. 

The entry of Clark comes clearly within the confirmatory provisions of 
section 7. But the question is, whether it should be confirmed in the 
interest of the Murphy heirs, or the transferees of the land under the 
tax sale by Pueblo county. It is assumed by counsel, both in the 
specifications of error and the brief, that the judgment of your office 
was in favor of the Murphy heirs. 

Section 12, Chapter XCIX, General Statutes, State of Colorado, 1883, 
provides : 

Lands entered hy pre-emption, final homestead, at puhlic or private sale, or other- 
wise, shall he sabject to taxation, whether patent for the same shall have been 
issued or not, etc. 

It appears by the abstract of title to the record that the land was 
sold for taxes for the year 1879, on October 9, 1880, and by the treas- 
urer or Pueblo county conveyed to the county, March 10, 188G; that 
by order of the county commissioners the land was sold and conveyed 
to Smith, December 11, 1888, who subsequently conveyed an undivided 
one half of it to Sweet. 

The legality or regularity of this sale is not questioned by the heirs 
of Murphy. It therefore follows that it must be assumed that it was 
legal and regular. 

In Carroll v. Saflbrd (3 How., 441), the United States supreme court 



DECISIONS RELATIKO TO THE PUBLIC LANDS. 141 

held that land upon which final certificate was issued is taxable prop- 
erty, notwithstanding patent has not issued, and may be sold for taxes. 
This doctrine is followed with approval in Witherspoon v, Duncan, 4 
Wall, 210; Wisconsin Central R. R. v. Price Co., 133 U. S., 496; and 
Northern Pacific v. Patterson, 155 U. S., 130. 

It is clear, therefore, that the heirs of Murphy have been divested of 
their title to and interest in the land by reason of this tax sale, and it 
follows that the entry can not be confirmed in their interest. 

The title to the tract, having passed by a procedure and conveyance 
recognized as sufficient to divest the Murphy heirs of their right, would 
seem to be in Smith and Sweet, as contemplated by section 1; that is, 
they are bona fide purchasers for a valuable consideration, and the 
tract had been transferred by the entryman prior to March 1, 1888, 
after final entry. 

Your office judgment is therefore modified; the entry of James Clark 
will be confirmed and passed to patent in his name. 



RAILROAD GRANT— LAIfDS EXCEPTED-RELINQUISHMKNT. 

Northern Pacific R. R. Co. r. St. Paul, Minneapolis and Man- 
itoba Ry. Co. 

An expired pre-emption filiog of record, at the date a railroad grant takes eAect, 
excepts the land covered thereby from the operation of the grant. 

The grant of March 3, 1871, was not odc in preeaenlif Init in futurOf taking effect oq 
the delivery and filing of the relinqnishnient reqnired nnder the terms of the 
grant. 

Report called for from the General Land Office as to alleged excess indemnity selec- 
tions in the second indemnity belt in the State of Minnesota. 

Secretary Francis to the Commissioner of the General Land Office, Feb- 
(1. H. L.) ruary 6, 1897. (E. M. R.) 

Ou June 20, 1895, yonr office took np tor adjustment list Ko. 24, 
indemnity, of the Northern Pacific Railroad Company, filed in the 
local office on November 5, 1883. This list did not designate tract for 
tract the lost land for which indemnity selections were made, but on 
June 16, 1892, the company filed re-arranged lists No. 24 A, 24 B, and 
24 O, describing the lost lands tract for tract. 

From your said decision the St. Paul, Minneapolis and Manitoba 
company filed three appeals: the first involving the NE. ^ of the SE. ^ 
of Sec. 29, T. 128 N., R. 35 W., St. Cloud laud district, Minnesota 5 the 
second, involving the SE. J of Sec. 31, T. 128 N., E. 4 N., same land 
district, and the third, involving the N. J of the NW. J, the SE. J of 
the NW. i, the SW. J of the N W. J, and the S W. J of Sec. 13, T. 128, 
B. 34, the SE. 4 of the NE.^ of Sec. 1, same township and range; 
the NB. i of Sec. 6; the NW. J of the NE. i, the NE. J of the NW. J 
and the SW. J of the NW. J of Sec. 11, same township and range, and 
the N. } of the NE. 4 of Sec. 15^ same township and range. 



142 DECISIONS RELATING TO THE PUBLIC LANDS. 

The ground of error in the first appeal is that your office erred in 
holding that the tract in question was excepted from the operation of 
its grant by the pre-emption declaratory statement of one William 
Belcher. ni)on this point your office decision says : 

This tract is also within the primary limits of the grant for the St. Vincent 
Extension company and was excepted from the grant by the pre-emption filing of 
Wm. Belcher, made September 26, 1870, settlement alleged September 24, 1870 (19 
L. D., 215), the Northern Pacific Railroad Company's application to select this tract 
was accordingly aUowed. 

It is urged in the appeal that the pre-emption filing in question could 
have no effect as against the grant to the Manitoba company «^ because 
it had ceased to be a subsisting claim at the date the grant to said 
company became operative.'' 

It is alleged further — 

In this case Belcher settled September 24, 1870, and filed his declaratory 8tate> 
ment September 26, 1870. His pre-emption claim therefore expired and the land 
became subject to entry as other public laud on September 24, 1871, which was prior 
to the time when appellant's grant became operative. 

This Department recently, in considering the case of Whitney r. 
Taylor (158 U. S., 85), determined that the doctrine therein laid down 
applied equally to expired as to unexpired declaratory statements. 
The contention of the appellant is therefore not well taken. 

In the second appeal it is urged that your office erred in holding that 
the SE. 4 of Sec. 31, T. 128 N., R. 34 W., was excepted from the opera- 
tion of the grant by the homestead entry of one Allen D. Bond. Upon 
this land your office decision held : 

This tract was excepted from the grant to the said company by the homestead 
entry of Allen D. Bond, made November 1^ 1865, and canceled December 14, 1871 
(19 L. D., 215). The application of the Northern Pacific Railroad Company to select 
this land is allowed and the St. Paul, Minneapolis and Manitoba Railroad Company's 
list No. 8, is held for cancellation to the extent thereof. 

This land is within the indemnity limits of the grant for the Northern 
Pacific Eailroad Company. It is also within the place limits of the St. 
Paul, Minneapolis and Manitoba Railway Company, and the question 
for consideration is : Did the rights of the said last named company 
become operative from the date of the passage of the act of March 3, 
1871 , which authorized the St. Paul, Minneapolis and Manitoba Bail- 
way Company to relocate its St. Vincent extension? 

Your office decision in citing the case of Hastings 'and Dakota Rail- 
road Company v. Grinnell et al, (19 L. D., 215), which was based upon 
the case of Bardon r. Northern Pacific Railroad Company (145 U. S., 
535), evidently assumed tbat the grant to this company was similar to 
that of the Northern Pacific Railroad Company and was one in prce- 
genii while in fact it was one in future, and became operative when the 
relinquishment was made as required by that act. St. Paul and Pacific 
Railroad Company v. Northern Pacific Railroad Company (139 U, S., 
1-16). 



DECISIONS RELATING TO THE PUBLIC LANDS. 143 

On December 13, 1871, the St. Paul and Pacific Railroad Company, 
through its president and secretary, made, sealed, and signed the 
release required by the proviso of the act aforesaid and this instrument 
was filed in the Department on December 19, 1871, and was thereupon 
accepted by this Department as a compliance with the requirements of 
the act. 

The rights of the St. Paul, Minneapolis and Manitoba Railway 
Company to this tract of land de])end upon a determination of the 
question as to when that relinquishment became effective. Was it 
effective on the date of its being signed or on the date of its delivery 
and filing in this Department? If it was effective on the date of its 
being signed, the land is excepted from the operation of the grant on 
behalf of this railroad company, as on that day the homestead entry of 
Bond was uncanceled. If it became effective, on the other hand, only 
on delivery, then the grant became operative on that date, to wit, 
December 19, 1871, and as the map of definite location was filed in your 
office on December 20, 1871, it appears that at both dates the record was 
clear, the entry of Bond having been canceled on December 14th. 

In the recent case of St. Paul, Minneapolis and Manitoba Railway 
Company and Northern Paeific Railroad Company v. Bergerud, on 
review (2:3 L. D., 408), it was held, that the relinquishment became 
effective only with delivery, inasmuch as the relinquishment was in 
effect a deed under the well-recognized rule of the few. Such being 
the case, it would appear that your office decision was in error in refer- 
ence to this tract and that it should have been awarded to the St. 
Paul, Minneapolis and Manitoba Railway Company. 

In reference to the third appeal taken by the appellant, consisting of 
the N. i of the NW. J, the SE. f of the N W. i, the 8W. J of the FW. J, 
and the SW. i, of Sec. 13, T, 128, R. 34 W. ; the SB. J of the NE. J of 
Sec.l J the NB. J of Sec. 5; the NW. J of the NE. J, the NE. J of the 
NW. J and the S W. J of the N W. J of Sec, 11 ; and the N. i of the NE. i 
of Sec. 15, same township and range, it is urged that your office deci- 
sion erred in holding that the land in question was subject to the selec- 
tion of the Northern Pacific Railroad Company; second, in not holding 
that said company has selected within its forty miles second indemnity 
limits, a quantity m excess of the quantity it is entitled to select under 
the provisions of the joint resolution of May 31, 1870, and the attention 
of the Department is called to the fact that under the terms of the joint 
resolution of 1870, the Korthern Pacific Railroad Company was author- 
ized to select within such indemnity belt in any State, an amount of 
land equal to the amount which it had failed to secure in its granted 
limits within said State, subsequently to the passage of the act of July 
2, 1864, and prior to the definite location of its road, and it is asserted 
thatau adjustment of the grant for the Northern Pacific Railroad Com- 
pany made by your office in 188G or 1887, shows that the company had 
made within such indemnity limits in this State, selections of 40,000 



144 DECISIONS RELATING TO THE PUBLIC LANDS. 

acres in excess of the quantity sold or otherwise disposed of sabse- 
qaently tx) July 2, 1864, and prior to the definite location of its road, and 
that this excess is in addition to the further acreage of 84,000 aitres 
awarded to said Northern Pacific Railroad Company by the supreme 
court of the United States in the case of said St. Paul and Pacific Rail- 
road Company u. The Northern Pacific Railroad Company (139 U. S., 1). 

This raises for consideration a very serious question upon which the 
Department is unable to pass on the record now before it. The case is 
returned to your office and you will report to the Department all the 
facts shown by the records of youi office bearing upon this question, 
and a decision upon the question involved is reserved i>ending action 
by the Department upon such report. 

The decision appealed from is accordingly modified. 



TnVTBER AXI> STONE ACT-ADVERSK CLAIM. 

Bateman 17. Carroll. 

The timber and stone act does not allow the purchase of land that is inhabited b a 
bona fide settler. 

Secretary Francis to the Commissioner of the General Land Office^ Feb 
(L H. L.) ruary 6y 1897. (A. E.) 

On June 16, 1893, John W. Carroll filed declaratory statement for the 
S. J of the SW. i, Sec. 26, the E. ^ of the 8E. J, Sec. 26, T. 67 K., E. 19 
W., Duluth, Minnesota, alleging settlement December 22, 1890. 

On June 23, 1893, Edward J. Batemen applied to purchase the same 
land under the timber and stone act. On November 29, 1893, notice of 
Bateman's application to purchase was executed by the register of the 
land office, and on December 11, 1893, a copy of said notice was served 
upon Carroll's attorney. On January 6, 1894, publication of the same 
was begun in a newspaper, the last publication being on March 10, 1894. 

Action on the declaratory statement of Carroll, filed by him on June 
16, 1893, when the township plat was first put on record, appears to 
have been suspended, but on November 3, 1893, your office allowed the 
declaratory statement to be filed without prejudice, and on November 
25, 1893, Carroll's declaratory statement went of record. 

On March 14, 1894, Carroll and Bateman each submitted final proof. 
At this time Bateman moved to dismiss defendant's proof on the 
ground of illegality of pre-emption filing. This motion was denied 
because of your office instructions o^ November 3, 1893, allowing the 
pre-emption filing to go of record without prejudice as of the time when 
first filed. 

A hearing was had on November 15, 1894. The register recom- 
mended in favor of the timber claimant, and the receiver that the 
timber filing be canceled. On appeal, your office held that: 

The weight and nature of the evidence incline to the position that there are forty^ 
or fifty acres of stone, thirty to forty acres of swale, and 1,200,000 feet of pine timher 



DECISIONS RELATING TO THE PUBLIC LANDS. 145 

worth $1.50 per thousaud. In its present condition it in wholly unfit for agricultural 
purposes, and is valuable chiefly for the timber upon it. 

While Carroll claims to have selected tlie laud for a home, I am satisfied that the 
contrary is true, and that the meager improvements were made ouly in order to lend 
color to his claim. 

Your office then held the declaratory statement of Carroll for cancel- 
lation. 

From this Carroll has appealed to the Department. 

On June 23, 1893, when Bateman made his sworn statement that he 
had personally examined the land in controversy, and that it was unin- 
habited, Carroll was a resident upon the land, and your ofBce so finds. 
This alone is sufficient to warrant the rejection of Bateman's applica- 
tion to purchase the land under the timber and stone act, as the act 
does not allow the purchase of land which is inhabited by a settler. 
The residence and improvement of Carroll can not be presumed to be 
in bad faith simydy because they were made in the wilderness. Many 
populous communities tliroughout tlie western country were begun by 
a pioneer making a settlement in what was then an almost inaccessible 
locality. There is no evidence to show that Carroll's settlement was 
made in bad faith, and you will therefore allow his final x)roof and 
reject the application of Bateman. 



Black Tomahawk v. Waldron. 

On the report submitted under the investigation directed October 20, 
1894, 19 L. D., 311, the former departmental decisions are adhered to, 
and judgment rendered in accordance therewith, by Secretary Francis, 
February 8, 1897. 



BAIIgROAD GRANT— INUEMKITY SEL.EC?TIOX— AB^\:NI>0XMEXT. 

Hastings and Dakota Ey. Co. v. Berg et al. 

The failure of a railroad company to perfect an indemnity selection, within a reason- 
able time after notice of final decision recoj^iziug the right of selection, must 
be held to work an abandonment of its prior right, where the withdrawal has 
been revoked, and an adverse rlaim interA'ened. 

Secretary Francis to the Commissioner of the General Land Office, Feb- 
a. H. L.) ruary 13, 1897. (F. ^^\ C.) 

The Hastings and Dakota Ilailway Coini)auy appeals from your office 
decision of March 2, 1893, involving the S. J of Sec. 3, T. 118 X., R. 45 
W., in Marshall land district, Minnesota. 

This land is within the twenty mile indemnity limits of the grant 
made by the act of July 4, 186C (14 Stat., 87), to aid in the construction 
10671— VOL 24 10 



146 DECISIONS RELATING TO THE PUBLIC LANDS. 

of the Hastings and Dakota Eailway, and was free from any adverse 
entry or right at the time of the withdrawal (May 11, 1868), on account 
of said grant. 

In 1884 Albert McFarlane applied to enter the SW. J of said section, 
and William Fraser the SE. J ; both of which applications were refused 
by the local officers because in conflict with said withdrawal for railroad 
purposes. 

From this denial the applicants appealed. 

July 12, 1886, said railway company applied to select both tracts, 
specifying a basis for the selection and tendering the required fees for 
said selection. 

This application was also rejected by the local officers because in 
conflict with the i>ending homestead applications aforesaid, and the 
company appealed. 

October 5, 1888, your office decided in favor of the company and that 
it was entitled to select said lands, and refused the said homestead 
applications. Fraser did not appeal. McFarlane appealed, and on 
March 13, 1891, this Department affirmed your office decision (12 L. D., 
228), holding that the railroad company had the right of selection in 
said lands. 

May 22, 1891, the indemnity withdrawals to said railway grant were 
revoked by departmental order (12 L. D., 641), as authorized by act of 
September 29, 1890 (26 Stat., 496). 

It is not claimed, after tbe decision by this Department of March 13, 
1891, said railway company ever made any effort to perfect its selection 
tendered in 1886, by making payment of selection fees or by making 
new selection for the land. 

February 26, 1892, Filing O. Berg made homestead entry No. 12,269 
for the SE. J (the Fraser quarter). 

May 7, 1892, Hans O. Berg applied to make homestead entry for the 
SW. i (the McFarlane tract), which was refused by the local office 
because the tract applied for had been selected by sjiid railway com- 
pany July 20, 1886, as being within the twenty miles indemnity limits 
of said road. 

Hans O. Berg appealed, alleging that the railroad company had 
never paid the selection fees nor completed its attempted selection of 
July, 1886, and that as the company had failed to complete its selection, 
and said land had been opened to settlement by the order of revocation 
of May 22, 1891, his homestead application should be accepted. 

It does not seem that notice of this appeal to the General Land Office 
was served upon the railway company, but that defect has been waived 
by its appearance herein by brief both before your office and this 
Department. 

The railway company does not seem to deny that it received noti<*e 
both of the decision of your office and this Department, but urges, in 
effect, that it was incumbent upon your office to advise the company 



DECISIONS RELATING TO THE PUBLIC LANDS. 147 

what steps should be taken id order to secure the acceptance of its 
selection. Its resident counsel in his brief says : 

When the Department found the land subject to selection on the company's appeal, 
it became the duty of the Secretary or Commissioner to notify the company thereof, 
and that the fees ivhich it had previously tendered to the local officers would now 
he received, upon the payment of which the selection would be approved. 

The company had exercised due diligence in the prosecution of its case by taking 
its appeals in apt time, and it was entitled to notice of the action of the Department 
as well as directions from it as to further requirements. The bounden duty of the 
Department was manifestly to advise the railway company that the money would 
now be accepted and its application to select allowed. 

The records of the General Land Office show that notice of your office 
decision of October 5, 188?^, was, on that date, given to all parties, and 
that an ofiice letter dated April 7, 1891, gave resident counsel for said 
company notice of the promulgation of the decision of this Department 
in the McFarlane case. 

The company was therefore duly and seas<^nably advised both of the 
action of your office -and this Department in its favor, and was bouLd 
to take proper steps within a reasonable time after said decisions to 
perfect its right under its proffered selection of this land, and I cannot 
agree with counsel that it was necessary that you should advise the 
company as to the proper steps to be taken in order to complete its 
attempted selection. 

Your office decision in favor of the company became final, as to the 
Fraser tract, in 1888, and as to the McFarlane tract, in the spring of 1 891, 
but to the date of your office decision, March 2, 1893, the company had 
taken no step to secure the acceptance of its proffered selection of 1886. 

In the meantime the withdrawal made of its indemnity lands had 
been revoked, and after the lapse of a year from the date of the last 
decision in its favor Blling O. Berg wa« permitted to make homestead 
entry of the Fraser tract and Hans O. Berg applied to enter the 
McFarlane tract. 

By its failure to cx>mplete its selection within a reasonable time after 
decision in its favor, the indemnity withdrawal having been revoked, it 
must be held that its laches worked an abandonment of its rights 
under its list presented in 188C, in the presence of an adverse claim. 

Your office decision is therefore affirmed. 



SWAMP L.A]jrDS— EVERGLABES-SCHOOL. LANDS. 

State of Florida. 

A patent may issne to the State of Florida ander the swamp land act for the nnsnr- 
Teyed tract known as the ''Everglades/' subject to the right of the State under 
its grant of school lands. 

Secretary Francis to the Commissioner of the General Land Office, Feb- 
(I. H. L.) ruary 13^ 1897. (W. M. W.) 

The Department is in receipt of a communication, dated December 
22, 1896; from the Commissioner of Agriculture and State Land Agent 



148 DECISIONS RELATING TO THE PUBLIC LANDS. 

* 

for the State of Florida, wherein he asks that patents issae for certain 
lands in Florida known as the "Everglades," under the act of Septem- 
ber 28, 1850 (9 Stat., 619). 

On October 10, 1894, my predecessor found that the unsurveyed 
body of lands lying within the State of Florida known as the "Ever- 
glades" is in fact swamp land, and that a survey thereof is not practi- 
cable, and he held that a patent may issue to the State under the 
swamp grant, upon an estimated area designated by metes and bounds, 
the State to furnish a meander survey of said "Everglades," accompa- 
nied by satisfactory proof that said meander line does not include 
within its limits lauds not of the character granted. See 19 L. D., 251. 
See also State of Florida, 18 L. I)., 2G; State of Florida, 8 L. I).. 05; 
Id., 369. 

On the 13th day of February, 1895, the United States Senate passed 
a resolution, as follows: 

Resolved that the Secretary of the Interior be, and he is hereby, directed to inform 
the Senate whether it is proposed to issue a patent to the State of Florida for that 
portion of the State known as the ''Everglades/' and if so whether the Seminole 
Indians of Florida will be thereby dispossessed of their occnpancy of said lands or 
any portion thereof. 

This resolution was referred to your office and also to the Commis- 
sioner of Indian Affairs for reports. 
On February 23, 1896, the Commissioner of Indian Affairs reported : 

That the '* Everglades'' as laid down npon the map of Florida comprise large por- 
tions of the counties of Monroe and Dade. From a report made by Special Agent 
Wilson, December SO, 1887 (see Senate Ex. Doc. No. 139, 50th Congress, Ist session), 
it appears that there were then fifty Indians in Monroe conuty, and one hundred 
and twenty-six Indians in Dade county. Whether these Indians are located, within 
the ^'Everglades' which it is proposed to patent to the State of Florida, I am 
unable to determine. It also appears that there are Indians located in sections 
1 and 2, township 53 south of range 41 east, in Floridn, but whether these section.^ 
will fall within the "Everglades," as they may be surveyed by the governor of 
Florida, is a matter of doubt. 

If the Indians now have the right of occupancy of the lauds within the *' Ever- 
glades,'' and the United States should convey su(*h lands by patent to the Stat« of 
Florida, I am of the opinion that the State would take title subject to the right of* 
occupancy of the Indians (see Beecher r. Wetherby, 95 U. S., 517, and the authorities 
therein cited). 

On Febrnary 16, 1895, your office reported on said Senate resolntion, 
showing tliat in compliance with the departmental directions given in 
19 L. D., 251, letters were sent from your office to the governor of 
Florida and to the United States surveyor-general for Florida, inclosing 
copies of said departmental deci.siou embodying instructions how to 
proceed to execute the "meander survey giving the exterior metes 
and bounds of *The Everglades,'" and requesting the governor of 
Florida 

to submit satisfactory proof that said meander line does not include lands which do 
not come within the description of swamp and overHowed lauds as defined in the 
act of September 28, 1850. 



DECISIONS RELATING TO THE PUBLIC LANDS. 149 

On February 28, 1805, the Department, in response to said Senate 
resolution, transmitted to the President of the Senate copies of the 
reports of your office and the Indian office. 

On January 9, 1896, your office submitted Florida swamp land list 
No. 87, embracing the lands designated on the maps as "The Ever* 
glades,'^ and containing an estimated area of !3,943,600 acres. In your 
office letter it is said: 

The estimate include:) all tbe lands within tho meander given in the list; and what 
would he school sections (16) in the several townships, if surveyed, are therefore, 
inclnded in the total area submitted for a])proval under the swamp land grant; thi^< 
is on the theory that although the school grant is of earlier date than the swamp 
land grant, the latter being a grant in pra^senti, takes precedence in the case of 
unsurveyed lands. The approval of the list is respectfully recommended. 

On February 3, 1896, my predecessor, referring to said list, requested 
your office to prepare and forward for consideration 

an .abstract of the evidence in your office, submitted by said State, going to show 
that the meander line of the survey of the ** Everglades" does not include within the 
original limits thereof any lands which do not fall within the description of swamp 
lands under the act of 1850 above mentioned, as required by my decision of October 
10, 1894(19L.D.,251). 

Pursuant to said request, your office, on the 6th day of February, 
1896, transmitted to the Department a resume of the evidence submit* 
ted by the State of Florida in support of its claim, as follows: 

In addition to certified copies of the field-notes of survey of certain townships 
bordering on the ''Everglades,'* the State submitted the affidavits of a number of 
persons having knowledge of the land, two of whom, J. W. Newman and Charles F. 
Hopkins, were engineers in charge of expeditions crossing the *' Everglades," one 
from Fort Shackleford to Miami, and the other from Lake Okeechobee to the month 
of Shark River. The two persons mentioned are the only ones appearing to have 
any real knowledge as to the character of the interior portion of tho "Everglades," 
and I inclose their affidavits as they are too concise to bear abridgment. 

Eleven persons testified as to the general character of the land near the golf of 
Mexico, or the southern portion of the ''Everglades." They testified that, with the 
exception of a few 'Mslands" or ''hammocks" of from two to twenty acres in extent, 
the whole country is one vast marsh, impracticable to drain, or land utterly worth- 
leas for agricultural purposes. It is not stated that the land is rendered worthless 
by reason of its wet condition. The State refers to the report of Mr. Frank Flynt, 
which report is fully set forth in 19 L. D., 251. 

The field-notes of survey of the townships bordering on the "Everglades," the 
lines of which surveys form the principal meanders mentioned in said list No. 87, 
show the lines to have been run through swamps or marshes for almost its entire 
length. It is tlie opinion of this office that the public land surveys were extended 
into the "Everglades" as far as was practicable and, in many instances, the border 
townships were found to be almost entirely swanip-lund. 

In Newman's affidavit he states, that as engiueei: in charge of a party 
of twenty persons, he traveled across the peninsula of Florida from 
Fort Myers to the place marked on maps as Fort Shackleford, and 
thence in a southeasterly direction across the "Everglades" to Miami 
on Biscayne Bay; 'Hhat he does not think or believe that along the 
route irom a point ten miles southeast of Fort Myers to a point four 



150 DECISIONS RELATING TO THE PUBLIC LANDS. 

miles west of Miami one single tract of forty acres of land can be found 
fit for cultivation without artificial drainage." 

The affidavit of Oharles F. Hopkins shows that in ^N^ovember, 1883, 
he was the engineer of an expedition through the ^^ Everglades^" that 
the expedition entered Lake Okeechobee and proceeded due south from 
the southern extremity of the lake for nearly eighty miles, and then 
deflected to the *' W. S. W." to the head of Shark River, and proceeded 
down that river to its mouth. The party traveled in small boaf.s 
^* paddling, pushing and dragging them alternately through the shal- 
low water and saw-grass." He further states : 

I took Roundings, with an iron rod^ eight feet long, through the mnd and uiack, 
occasionally, for abont sixty-five miles; after -which the rock cropped out on the 
surface. 

At a distance of fifteen miles we found rock at a depth of eight and one-half feet, 
and afterwards at varying depths of from three tu five feet for a total distance from 
the lake of sixty miles. The muck throughout this distance appeared very rich. 
The rock kept rising nearer the surface, until in the vicinity of the head of Shark 
river it cropped out ou the surface. 

There are several streams with a slow current running southerly out of Okeechobee, 
which are about ten feet deep, and about one hundred and fifty feet wide nt the 
mouth, gradually growing smaller, until at the end of two or three miles they spread 
out over the country. 

These streams run through a custard apple swamp. We then encountered a plain 
with a stunted growth of Myrtle and ^'yama'^ grass, with water about a foot deep, 
at that time, which was at the end of a dry season. We continued through this for 
a few miles and then entered thick and tall saw-irrass. 

This saw-graAS extended almost uninterruptedly for about forty or fifty miles, and 
then broke up into small saw-grass islands separated by small channels and bayous 
of water. * 

When we arrived in the vicinity of the head of Shark river, these islands changed 
into innumerable small hammock islands, mixed with the saw-grass islands, and 
strange enough all arranged in rows extending S. S. £., so one could st-and and look 
down between the rows, as far as the eye could see. 

These hammocks vary in size from one to twenty-five acres, and a few of them are 
above ordinary over-fiow. The soil of these islands is rieh. 

Not over one in one hundred of these islands are susceptible of cultivation, in their 
present state, as they are overflowed during the rainy season, and moreoYer are 
inaccessible until the surrounding marsh is drained. 

The country for about sixty miles south of Okeechobee is susceptible of drainage, 
being elevated at Okeechobee twenty-two feet above the sea, and gradually declining 
to the sea level. South of this limit the rock crops out at the surface, and, except 
the islands before mentioned, the lantl is worthless even if drained. 

Drainage would be impracticable here as the gulf waters back up so as to destroy 
the fall. 

1 he country in its present condition is a vast marsh covered with water at all sea- 
sons and for forty miles south of Okeechobee is devoid of all animal life, even to birds 
and alligators, on the line we traversed. 

Our exneditiou passed down the median line of the State, which is the summit or 
water-shed line. On each side of us, four or five miles away, the water was deeper, 
in the saw-grass being from two to three feet deep ; and for the first fifty miles after 
passing the custard apples there was no land in sight, the waving saw-grass extend, 
ing as far as the eye could see in all directions, except on the west. A hazy outline 
of the land could be seen in that direction. 



DECISIONS RELATING TO THE PUBLIC LANDS. 151 

Shark river is aboat four and one-half to five feet deep and about two hundred 
and fifty feet wide, with rock bottom. Water very clear ; depth of water at mouth 
twelve feet; mnd bottom. 

The cruise occupied twenty-eight days from Lake Okeechobee to the gulf; during 
which time we Blept in boats every night, there being no dry land to camp on. By 
meridian altitude of the sun (using artificial horizon), I find the extreme south end 
of Lake Okeechobee to be in latitude 26^ 41' 19' south. 

The jndgineut of your office, that the swamp laud grant *' takes pre- 
cedence in the case of, unsurveyed lands," is not concuri'ed in, for reasons 
that will hereinafter be given. 

Section 1 of the act of March 3, 1845 (3 Stat., 788), provides: 

That in consideration of the concessions made by the State of Florida in respect 
to the public lands, there be granted to the said State eight entire sections of land 
for the purpose of fixing their seat of government; also, section number sixt<^en in 
every township, or other lands equivalent thereto, for the use of the inhabitants of 
sacb township, for the support of public schools. 

This act was passed over five years before the swamp laud act, and 
was based upon express concessions made by the State respecting 
the public lands, and in its nature rests in a solemn compact, which the 
government of the United States should maintain, sacredly keep and 
carry out on its part. It is clear that Congress intended by this act to 
invest the State with title to every sixteenth section of land in that 
State that had not been disposed of^ just as soon as such sections 
should be identified by proper surveys of the public lands. Whenever 
such sections shall be identified, the title thereto will pass to the State 
under the granting ac^t; no patent will be necessary. Warren et al. 
V. State of Colorado, 14 L. D., 681; McCreery r. Haskell, 119 U. S., 
327-331. 

These views find support in the decisions of the supreme court of the 
United States, as well as those of this Department. 

In Cooper r. Roberts, 18 How., 173, it was said: 

We agree that until the survey of the township and the designation of the specific 
section, the right of the State rests in compact — binding, it is true, the public faith, 
and dependent for exectitioo upon the political authorities. Courts of justice have 
no authority to mark out and detine the land which shall be subject to the grant. 
Bat when the political authorities have performed this duty, the compact has an 
object, upon which it can attach, and if there is no legal impediment the title of the 
State becomes a legal title. 

See also fleydenfeldt r. Daney Gold and Silver Mining Company, 93 
U. S., 634. 

In Beecher r. Wetherby, 95 U. S., 517, in speaking of the school 
grant to the State of Wisconsin, it is said, p. 523: 

It was, therefore, an unalterable condition of the admission, obligatory upon the 
United States, that section sixteen (16) in every township of the public lauds in 
the State, which had not been sold or otherwise disposed of, should be granted 
to the State for the use of schools. It matters not whether the words of the com- 
pact be considered as merely ])romissory on the part of the United States, and 
constituting only a pledge of a grant in the future, or as operating to transfer the 



152 DECISIONS RELATING TO THE PUBLIC LANDS. 

title to the State upon her acceptance of the propositions as soon as the sections 
could be afterwards identified by the public surveys. In either case, the lands 
which might be embraced within those sections were appropriated to the State. 
They were withdrawn from other disposition, and set apart from the public domain, 
so that no subsequent law authorizing a sale of it could be construed to embrace 
them, although they were not specially excepted. All that afterwards remained 
for the I'nitcd .■>tates to do with respect to them, and all that could be legally done 
under the compact, was to identify the sections by api:ro]iriate surveys; or, if any 
further assurance of title was required, to provide for the execution of proper instru- 
ments to transfer the naked fee, or to adopt such further legislation as would 
accomplish that result. They could not be diverted from, their appropriation to 
the Stute. 

On November 20, 1855, Secretary McClelland held that the swamp 
grant of September 28, 185<>, did not embrace lands in Illinois which 
were included in the railroad grant of September 20, 1850. See 1 
Lester, 521-523. 

Secretary Schurz declined to recall his opinion in a similar case ren- 
dered on May 2, 1878. See Copp's Public Land Laws, 1071. 

In State of Mississippi, 10 L. D., 393, Secretary Noble held (syl- 
labus) : 

Swamplands, inclu<led within the alternate sections reserved to the lJnite<l States 
from the grant to the State for railroad purposes, did not pasn under the subaeqaent 
act of September 28. 1850. 

In State of Ohio (on review), 10 L. D., 304, Secretary Noble held 
(syllabus) : 

The swamp lands, included within the alternate sections reserved to the United 
States from the grant to the State for canal purposes, did not pass under the subse- 
quent grant of swamp lands, and no indemnity can be allowed therefor. 

It does not follow tbat because a survey of the " Everjfladea ^ is 
impracticable, that the State should be deprived of its rights under 
its school grant. The " Everglades" of Florida present conditions that 
are exceptional in character, inasmuch as it would seem that the body 
embraced therein can not now be surveyed in such a manner as to mark 
out and specifically define the township and section lines. It is i>os- 
sible, however, that such survey may hereafter be made, and under the 
circumstances, and for the reasons hereinbefore given, it is deemed 
proper that the State's rights under its school grant should be pre- 
served to it. It is accordingly held that a patent may issue to the 
State of Florida for the " Everglades" under the swamp land act, sub- 
ject to the right of the State under its school grant, for the laud 
embraced in the swamp list No. 87, as approved by me. With this 
modification, said list is approved, and you are directed to issue a 
patent accordingly. 

The views of the Commissioner of Indian Affairs respecting the rights 
of any Indians occupying the lands in question are concurred in. 



DECIfilONS RELATING TO THE PUBLIC LANDS. 153 

PRE-EM PTIOX— FIX AL. PROOF— PA YMEXT. 

Odett r. Davis. 

The sabmiBsion of pre-emption final proof, without payment of the purchase price of 
the land as required by law, will not protect the pre-empt or as against an inter- 
vening adrerse claim. 

Secretary Francis to the Commisawner of the General Land Office^ Feb • 
(I. H. L.) ruary 13, 1897. (W. M. W,) 

Tlie case of Frank Odett r. John C. Davis lias been considered on 
tlic a])peal of the former from your office decision of August 24, 1895, 
holding for cancellation said Odett's pre-emption declaratory statement 
for the W. i of the KW. J, the NE. \ of the N W. J, and the NW. \ of 
the SW. \ of Sec. 33, T. 30 N., R. 11 E., Susanville, California, land 
district. 

The record shows that on November 1, 1888, Odett filed his pre- 
emption declaratory statement covering the land in question. On 
September 11, 1891, he submitted final proof in support of his claim, 
but did not pay or tender the purchase money for said land. 

On August 7, 1893, John C. Davis made homestead entry for said 
land. 

On August 15, 1893, Odett appeared at the local land office, and offered 
to pay the government price for said land and asked that final receipt 
be issued to him therefor. This the register and receiver refused to do. 
There is nothing in the record to show upon what grounds this refusal 
was based. 

It appears from the decision of the register and receiver in the case 
that upon 

affiilavit filed by said Odett citation was issued to said Davis to show cause why his 
said homestead entry should not be canceled. Hearing was set for October \2, 1893. 

The case was continued until December 22, 1893, when it was sub- 
mitted on an agreed statement of facts. 

On April 10, 1895, the register and receiver rendered their opinion, 
in which they held that Odett's pre-emption filing should be held intact, 
and that Davis's homestead entry should be canceled without prejudice 
to his right to make another homestead entry. 

Davis appealed. 

On August 24, 1895, your office reversed the judgipent of the local 
oflBcers, and held Odett's filing for cancellation. 

Odett appeals. 

His sx>ecifications of error are as follows; 

1. In holding that the record herein "fails to disclose any reason for 
iriving him (plaintifl) a hearing, or in any way recognizing his claim to 
said laud.'' 

2. In holding that "failure to make proof and payment (on a pre- 
emption claim) as provided by law entails a forfeiture of all rights in 
the presence of an adverse claim." 



154 DECISIONS BEIiATING TO THE PUBLIC LANDS. 

3. In holding that the "intervention of the Davis entry while Odett 
was in default obliterated the latter's claim." 

4. In holding the plaintififs declaratory statement filing for cancella- 
tion. 

5. In holding Davis's homestead entry intact. 

The case was submitted to the register and receiver upon an agreed 
statement of facts, on which it was decided by them and by your office. 
Said agreed statement of facts recites the record showing Odett's pre- 
emption filing, his final proof, failure to tender or pay the purchase 
money at the time of proof, Davis's entry, and thereafter Odett'a offer 
to pay for the land, as hereinbefore set out. In addition to these mat- 
ters, the agreed statement shows that Odett is a laboring man, depend- 
ent upon bis labor for a living; that at the time he made final proof 
he did not have the money to pay for the land, but it was his bona fide 
intention to secure the money to pay for the land as soon as he could; 
that on August 14, 1893, he borrowed the required amount of money to 
pay for said land, and on the 15th day of said month he offered to make 
payment for the land embraced in his preemption filing ; that at the time 
Davis made his homestead entry of the tract Odett had on said land '^a 
good substantial house, fence inclosing about three or four acres, and 
said garden.'' Said statement contains many other facts that can have 
no bearing on the questions to be determined. 

Counsel for appellant calls attention to Hugh Taylor, 9 L. D., 305, 
and contends that it sustains his allegations of error. 

That case involved the right of a pre-emptor, after the statutory life 
of his filing had expired, and while proceedings under his final proof 
were pending, to transmute his filing under section 2289 of the lievise<l 
Statutes. His application to transmute was in its nature and effect a 
pending application to make homestead entry of the tract in question. 
It follows that the case at bar does not come within the rule announced 
in the Hugh Taylor case. 

Referring to Odett's failure to make payment for the land in question, 
your office held that: 

While this delinqaency would not necessarily defeat his right to make entry, in 
the absence of an adverse claim^ it did, from the moment his delinqnency began, 
render the land snbject to entry by any other qualified applicant. In other words, 
failure to make proof and payment, as prescribed by law, entails a forfeiture of all 
rights in the x^resence of an adverse claim. 

This holding is concurred in. 

The judgment of your office appealed from is accordingly affirmed. 

On the 17th of January, 1896, counsel for Odett filed what he calls 
"Petition for Rehearing," in which he recites that the claims of each of 
the parties have been under investigation by a special agent, who has 
reported against them. He also charges that Davis has abandoned 
the land in question, and asks that another hearing be ordered. Said 
petition does not allege newly discovered evidence, but simply relates 



DECISIONS RELATIK6 TO THE PUBLIC LANDS. 155 

to matterB of fact arising since the trial which might be the basis of a 
contest, if the entry were in snch a condition that it would be subject 
to contest under the law. 

If the alleged government proceedings shall be discontinued or ter- 
niiuated without canceling Davis's entry thereafter, I see no reason why 
Odett may not, if he desires to do so, contest Davis's entry on any 
grounds sufficient to warrant a cancellation thereof. If said proceed- 
ings result in canceling Davis's entry, the land will be subject to eiitry 
by the first legal applicant. If Odett is qualified, and desires to enter 
it, and makes the first application after it shall become subject to entry^ 
there is nothing to hinder him from doing so. 

The petition is dismissed. 



HOM£ST£AI> EXTRY-ALIEXATION— COMPROMISE. 

Meal r. Donahue. 

An agreement to couvey part of the land covered by a homestead entry after final 
proof, with possession given under such contract, calls for cancellation of the 
entry, although the agreement may have been made in the compromise of a prior 
contest against the entry in rinestion. 

Secretary Francis to the Commissvoiier of the General Land Office^ Feb- 
(I. H. L.) ruary 13, 1897. (E. B., Jr.) 

Alfred H. Meal appeals from yonr office decision of December 9, 1895, 
iu his case against John J. Donahue, involving lot>s 1 and 2 and the 
S. i of the NE. i of section 5, T. 17 N., R. 2 W., Guthrie, Oklahoma, 
land district, for which the latter made his homestead entry April 27^ 
1889, and final proof April 9, 1895. 

On May 3, 1895, Meal filed a protest against Donahue's entry alleg- 
ing that the same was fraudulent for the reason that about May, 1891, 
Donahue had sold to one John T. Phillips thirty-four acres of the land 
embraced therein, and thereafter held the land fraudulently for the pur- 
pose of acquiring title thereto in order '' that he might convey title to 
a portion thereof to said John T. Phillips under his contract of sale''; 
and further, that the said John J. Donahue fraudulently attempted to 
convey title to said land to his sister-in-law, Mrs. Temple, immediately 
after making final proof thereon: wherefore Meal prays that a hearing 
be ordered '^to determine the truth of the allegations herein"; and that 
the entry be canceled and he be awarded the preference right to enter 
the land. 

These charges are supported by Meal's affidavit and the affidavit of 
said Phillips. The latter swears that for some time i)rior to about May, 
l^i91, he had a contest x>ending against Donahue's entry affecting — 

the E. i of the N£. i of said sectiou 5; that abont May 1891, he withdrew his said 
contest against said homestead entry in consideration that the said John J. Donahue 
sbonld prove said land up, and acquire title thereto from the government of the 
l.'uit«d .States, and thereafter shonhl deed to this afhant thirty four acres off tiie east 



156 DECISIOXS RELATING TO THE PUBLIC LANDS. 

Bide of said NE. } of said section 5; that at said time last mentioned, the said Jofaa 
J. Donahue, entered into an agreement with this affiant by which said Donahne 
agreed to acquire title to said land, and thereafter as soon as title was so acquired bv 
him, make a good and sufficient deed to this affiant to the thirty four acres above set 
forib ; that said Donahne also agreed that this affiant might have the nse of %:\'h\ 
thirty four acres from the time said agreement was entered into free of charge, and 
tliJJt this affiant might have and own all iniproveuientH of whatever kind and rhar- 
aoter affiant could place upon said thirty four acres; that in pursuance of said agree- 
ment and in consideration of the withdrawal by affiant of his contest above referred 
to, this affiant went into possession of said thirty four acres^ and has continued Id 
said possession up to the present time; that in pursuance of said agreement an>i 
promise so entered into by said .John J. Donahue, this affiant proceeded to plant and 
raise upon said thirtv four acres of land an orchard and vineyard consisting of abo'.iT 
three hundred fruit trees and about two hundred grape vines, and that affiant a]>o 
planted and lias continuously cared for about fifty ornamental and forest trees and 
other shrubbery on said thirty four acres on and about a building site selected and 
enclosed as such br affiant and his familv; .... that said Donahue coutioueil 
to re- affirm said agreement as to said thirty four acres until after bo had made t\ui\ 
proof upon his said homestead entry, which was done on April 9th, 1895, Irit tint 
since about the 15th of Ai)vil 1895, said Donahne has refused to comply with the 
said agreement and has refused to make a deed to said thirty four acres to this affiant : 

but that said Donahue did on the day of April 1895, make a deed of said land 

together with the balance of his said homestead entry to Mrs. Trimble, a sister-in- 
law of said Donahne, and that his said sister-in-law has as affiant is informed and 
believes, mortgaged said land for the sum of .^700.00. 

In said decision upon consideration of this protest your office held 
(1) that a conveyance of the land by Donahue after flnjil proof would 
not be sufficient ground for contest; and (2) that — 

The contract between Donahue and Phillips pursuant to which the contest was 
dismissed, was in the nature of a compromise, and was not, therefore, such an illegal 
agreement as would justify the cancellation of Donahue's entry. 

A hearing was therefore denied and the protest dismissed. Meul 
thereupon prosecutes this appeal, cont'Cnding that your office erred iu 
its holdings and action adverse to him as above stated. 

It is well settled that after due final proof and entry a homesteader, 
having then acquired the equitable title to the land entered, may con- 
tract to convey, or may at once convey the same without infracting any 
provision of the homestead law. A conveyance at such time is not^^er 
se evidence of bad faith on the part of the entry man. Your decision 
as to the alleged cf)nveyanee to Mrs. Trimble is therefore correct. 
With the alleged fraud of Donahue against Phillips in connection with 
that conveyance the land department is not concerned. That is a mat- 
ter between themselves. 

J do not concur, however, in the conclusion of your office that such a 
contract as is alleged to have been entered into between Donahue and 
Phillips is in the nature of a compromise such as to be permissible 
under the homestead law, and therefore not an illegal agreement. As 
a means of ending vexatious litigation, compromises between claimants 
to public land may properly be and generally are favored by the laml 



DECISIONS RELATING TO THE PUBIJC LANDS. 157 

department, but to be favored tbey must, as an essential condition pre- 
cedent, be within the law, and not involve and require as a necessary 
sequence, or as part of the contract on which they are founded, the 
violation of law. The government is to a certain extent a party to 
every valid compromise between adverse claimants to public land; or, to 
state the proposition ui another form, no such compromise can be effected 
without the knowledge and consent or subsequent ratification and 
ap|)roval of the United States. The alleged contract, or compromise, 
whereby the contest between Philhps and Donahue was brought to an 
end, could not have received the consent, and cannot now receive the 
approval, of the United States speaking through this Department; for 
such a contract or compromise would involve a violation of law on the 
part of said Donahue, then an entryman, and one of the parties 
thereto. 

It was said by the Department in the recent case of Walker v, Clay- 
ton (24 L. D., 79), wherein Clayton, prior to final proof, had made a 
contract with one May to convey to the latter his (Clayton's) homestead — 

III his homestead affidavit he had sworn that the entry was made for his exchisive 
lieuefit aud not directly or indirectly for tlie benefit or use of any other person or 
]>vr8on8 whatsoever, and he knew that in his final affidavit ho would he required to 
make oath, subject to an exception not here in point, that he had not alienated any 
part of the land (Sections 2290 and 2291, Revised Statutes). It was evidently 
implied, if not expressed, in his contract with the United States, that he would 
tuutinne to hold, reside upon and cultivate the laud for his exclusive use and beneOt 
Qutil the time should arrive, when, after the subifiission of final proof as required 
by law, he bad earned his right to receive patent therefor. 

It is no adequate defence that May could not enforce specific performance of the 
contract. Clayton might, of his own volition, have carried it out, and it is this mis- 
chief that the statute is designed to remedy (Molinari r. Scolari, 15 L. D., 201). 

In the case of Tagg r. Jensen (16 L. D., 113), it w:is laid down as the settled 
eciD8trncti(m of the pre-emption law relative to alienation "that any agreement tu 
convey any part of an entry or claim to another made prior to final proof will 
defeat the claim." While the language of the ]>re-emptlon law was more explicit 
than that of the homestead law an it stood at the date of this entry, the spirit aud 
intent of each on the point at issue was the same; and section 2290 of the Revised 
Statutes, as amended by the act of March 3, 1891 (26 Stat., 1095), was made to con- 
form sub:stantially to the language of the former. See in this connection Bashford t*. 
Clark f/flZ. (22 L. r).,328). 

The Department directed the cancellation of Clayton's entry because 
of tbe unlawful contract made by him, although no conveyance was 
ever made in pursuance thereof, nor any possession of the land, appar- 
ently, ever given. In this case not onlj- is a similar contract alleged, 
bat it is also charged that possession was given Phillips thereunder 
and continued by him up to the date of this protest. 

Meal's allegations as to this contract and its partial execution by 
Donahue, are amply sufficient to require that a hearing be ordered iu 
the premises. The decision of your office upon this point is reversed and 
yuu are directed to order a hearing, in accordance with the foregoing. 



158 DECISIONS RELATING TO THE PUBLIC LANDS. 

HOMESTEAD COXTEST— PRIORITV OF aETTLEMENT. 

BEHAB r. SWEET. 

The general rule that a settler claiming priority over one having an entry of record 
must establish his claim l)y a preponderance of the evidence, may 1>e so far 
departed from, in a special case, as to reach an equitable conclusion, where, ou 
the facts shown, justice and equity require a division of the land between the 
parties. 

Secretary Francis to the Commissioner of the Genfiral fAind Office, Feb- 
(I. H. L.) ruary 13^ 1807. (A. E.) 

On July 25, 1896, your office trausmitted a motion filed by Sweet for 
review of departmental decision rendered in the above entitled cause 
on June 9, 1896. The land involved is the XW. \ of Sec. 23, Tp. 26 N., 
E. 1 W., Perry, Oklahoma. 

This motion being entertained, on August 25, 1896, you were directed 
to notify Sweet that to insure consideration by the Department, be will 
be required to serve a copy of the motion upon the opposing party, and 
return evidence of such service within thirty days, that then each party 
would be allowed to file briefs in accordance with Rule 114 of Practice. 

On October 10, 1896, your office retransmitted the papers, with evi- 
dence of service and briefs of counsel. 

The matter is now before the Department for examination. 

The facts in the case are as follows: The land is divided by a creek, 
running from the northwest corner southeasterly. About one-third of 
the land lies north of this creek, and the timber along the creek 
obstructs the view from either side. Behar settled on the north 8i<le 
of the creek, and Sweet on the south side. A conclusion drawn from 
the evidence is that each settled at the same time, on September 16, 
1893, and neither knew the other was there, each having traveled about 
the same distance going to the land. Each man has built a house and 
improved the land. Over two years ago, when the hearing was had, 
Behar had twenty-one acres broken, fourteen of which were in wheat, 
had built two houses, kitchen, stable, chicken house, dug a well, set 
out fruit trees, and had forty or fifty acres fenced. One month after 
Behar settled on the land a child was born to liiui. Sweet's improve- 
ments consisted of a house, twenty-five acres fenced, hen house, bog 
pen, and twenty-five or thirty acres planted to crops. Each man has a 
family, and has been a continuous resident upon the land since his set- 
tlement, more than three years ago. 

When Behar settled upon the land, his wife was sick, and there was 
urgent necessity for a habitation for her to dwell in. He appears 
therefore to have devoted himself to the improvement of the claim* 
and did not apply to make entry until November 7, 1893, which, 
however, was within time under the homestead law. Sweet, however, 
not having a sick wife, for whom improvements were necessary, weut 



DECISIONS RELATING TO THE PUBLIC LANDS. 159 

to the local office and made entry on September 25, 1893, whicli was 
sixteen days before tbe birth of Behar'a child. 

It is contended by attorneys for Sweet that Sweet shonld have an 
advantage by reason of having made this entry before Behar, in that 
the harden of proof should be placed upon Behar to show that he was 
the prior settler. 

The local officers found in favor of Behar, but your office and the 
Department agreed in finding that it was impossible to determine that 
either Sweet or Behar had the superior claim, or that either had settled 
prior to the other, and that, owing to a line of woods which divided the 
tract of land in controversy, each settled unknown to the other. 

Each man had made valuable improvements, and had continuously 
resided upon the land, with his family, from dateof settlement, and the 
Department deemed it unjust to do other than divide the land between 
the parties. 

While the ruling that a settler claiming prior settlement over one 
having an entry of record must establish his claim by a preponderance 
of evidence, will be adhered to in most cases, the De[)artment will, where 
justice and equity require it, and great hardship would result were the 
rule applied, depart so fnr from the rule as to reach an equitable decision 
in the case. If the rule were applied in the case under consideration, 
it would be depriving Behar of his land and improvements, because he 
remained on the land, building a habitation for his sick wife, to whom 
a child was bom on the land twenty-tive days after his settlement. 
• Deeming that it would be a great hardship to Behar to disturb the 
decision in the case under consideration, rendered June 9, 1896, the 
same will stand. 

The motion is denied. 



PRICE OF LAND-rXDEMNITY LI>nTS-REPAYMEXT. 

Thomas Foster. 

Lands falling within the indemnity limits of a railroad are not raised to the double 

minimum price. 
There is no statutory authority for the return of a doable minimum excess in fees 

and commissions erroneously required on a homestead entry of lands in fact 

single minimnm, where such money has been covered into the United States 

Treasury. 

Secretary Francis to the Commissioner of the General Land Office Feb- 
(I. H. L.) rvary 13 j 1897. (J. L.) 

On February 8, 1889, Thomas Foster made homestead entry No. G479 
of the SW. J of section 14, T. 27 N., R. 32 E., W. M., Spokane Falls 
land district, Washington. He was required to pay and did pay to the 
receiver the sum of twenty-two dollars for fees and commissions, the 
land beinfc rated at double minimum price. On November 20, 1895, 
Foster filed an application for the repayment of six dollars, alleging 



160 DECISIONS RELATING TO THE PUBLIC LANDS. 

that the laud was *^ minimum priced laud, upon which the fees and 
commissions payable when application for homestead entry is made*^ 
could lawfully amount to only sixteen dollars. 

On December 3, 1895, your office rejected the application, saying, 

• 

that the records of this (yoar) office show that satd laud in within the limits of the 
grant to the Northern Pacific Railroad Company, branch line. Hence the land h 
doable minimum laiul (Section 2357 R. S.)y An<l the fees and commissions collected 
on said homestead entry, $22.00, was the proper amount. 

From said decision Foster has appealed to this Department, respect- 
fully traversing the fact found by your office as aforesaid. 

A re-examination of the records of your office shows, that the quar- 
ter section of land aforesaid lies within the indemnity limits of the 
grant to the Northern Pacific Company for its main line, and does not 
lie within the granted limits for the branch line. 

The act of July 2, 1864, incorporating the Northern Pacific Railroail 
Company (See section G on page 360 of 13 Statutes), and sectiou 2357 
of the Revised Statutes referred to in your office decision, do not extend 
the double minimum price to lands lying within indemnity limits. 
Only reserved alternate sections lying within the limits granted by act 
of Congress, are required to be sold for not less than two dollars and 
fifty cents per acre (19 L. D., 381). 

According to the list of fees and commissions published on page 34 
of the General Circular of October 30, 1895, it seems that Foster paid 
six dollars too much. 

Therefore the reason assigned by your office for rejecting Foster's 
application is erroneous. 

r>ut the relief desired by Mr. Foster cannot be granted, because the 
six dollars which he overpaid on February 8, 1889, and demanded back 
on November 20, 1895, were in due course of business covered into the 
treasury; and there is no statute which authorizes your office or this 
Department to take it out. The (Constitution provides that: "No 
money shall be drawn from the Treasury, but in consequence of appro* 
priations made by law." 

For this reason, your ofiijce decision rejecting the application is hereby 
affirmed. 

oklahoma i-aia>3^settl.e>cernt-bkservatiox for highway. 

Harding v. Moss. 

A settlement on land reserved for a public highway, along a section line, as provided 
under section 23, act of May 2, 1890, prior to the nrtnal location and use of such 
highway, is valid and extends to the adjacent quarter section on which settle- 
ment is intended to be made. 

Secretary Francis to the Commissioner of the General Land Office j Feb- 
(I. H. L.) rtiary 13, 1897. (O. J. W.) 

On September 20, 1893, Albert W. Moss made homestead entry No. 
339, for SW. J Sec. 10, T. 26 K. 2 E., Perry land district, Oklahoma. 



DECISIONS RELATING TO THE PUBLIC LANDS. 161 

On October 26, 1893, Harding filed his affidavit of contest against 
said entry alleging prior settlement. 

The hearing was set for October 26^ 1894. 

On motion of Harding the case was continued to January 2, 1895. 
On January 2, 1895, Harding made application to take the depositions^ 
of absent witnesses and the case was continued to March 11, 1895. On 
March 11, 1895, Harding asked for a further continuance of thirty days- 
on ac*connt of absent witnesses which was denied, but he was allowed 
another day, to wit: until 12th of March to get his witnesses. 

On March 12, 1895, the hearing was had, both parties being present 
and represented by counsel. On March 15, 1895, the local officers ren- 
dered their decision in which they found that Moss was the prior settler, 
and recommended the dismissal of the contest. Harding appealed, and 
on October 24, 1895, your office considered the case and rendered an 
opinion, in which it was, in substance, found that the evidence left the 
fi\ct in doubt as to which was the ])rior settler, and directed a division 
of the land between them in such way as to leave each in x>ossession 
of the half upon which his improvements had been placed. From this 
decision both Moss and Harding have appealed, each alleging, in Hub- 
stance, the same errors of law, and each alleging that it was error not 
to have found him to have been the prior settler. Harding alleges two 
errors of law not covered by the allegations of Moss. 

1. That it was error to deny bis motion for continnance. 

2. That it was error to hold that a settlement upon the fonr rods reserved for a 
public highway aronnd the section was a valid settlement. 

The land in controversy is a part of what Is known as the Oherokee 
Outlet, and was opened to settlement on the 16th of September, 1893. 
Each of the parties claims to have made the race to, and settlement upon, 
the land on the day of the opening. The two distinct legal propositions 
submitted by Harding will be first considered, since, if he is correct in 
dther, an examination of the other questions would be unnecessary. 

1st. Was it error on the part of the local officers to deny the motion 
of Harding for further continnance f The record indicates that ample 
opportunity was offered Harding to prepare his case for trial, and there 
was no abuse of discretion on the part of the local officers in denying 
his last motion for continuance. 

As tQ the insistence, that a settlement upon that part of a quarter- 
section reserved for a i)ublic highway along section lines, as provided 
by section 23, act of May 2, 1890 (26 Stat., 81), it must be held that 
before such highway is actually located and in use, such settlement must 
be regarded as valid and extends to the quarter- section contiguous, 
upon which such settlement was intended to be made. The highway 
provided for by the act is a mere easement, and does not prevent title 
to the entire quarter-section from passing to the patentee, subject to 
the easement. 

10671— VOL 24 n 



162 D£CI»IONS RELATING TO THE PUBLIC LANDS. 

Baid section twenty- tliree is as follows: 

That there shall be reserved public highways fonr rods wide between each section 
of laDd in said territory, the section lines being the center of said highways; but 
no deduction shall be made, where cash payments are provided for, in the amount to 
•t)e paid for each quarter-section of land by reason of such reservation. But if the 
.-flaid highway shall be vacated by any competent authority, the title to the respec- 
;tive strips shall inure to the then owner of the tract of which it forms a part by the 
original survey. 

Where, as in this instance, the initial act of settlement performed by 
a settler is upon, or partially upon, the land thus reserved, it will never- 
theless be deemed settlement upon the quarter-section to which it apper- 
tains and is intended to be settled upon. Your office did not err in so 
holding. 

The remaining questions are — 1st. Was it error upon the part of your 
office to direct a division of the land between the two claimants; and 
2(}. Was it error to make no ruling as to which one of the parties was 
the prior settler. As to the first of these propositions it was held here, 
in the case of Sumner v, Eoberts (23 L. D., 201) — 

In case of a contest against an entry on the ground of a prior settlement right, the 
burden of proof is on the contestant to show that his settlement antedates both the 
enlry and settlement of the oont«stee, and if he fails to thus show such priority, the 
«ntry must stand. 

In a contest of such character, donbt as to the fact of priority, or a finding of 
•simultaueouB settlement, does not justify an arbitrary division of the land between 
the parties, or an award thereof to the highest bidder. 

Your office decision as to this proposition is without support either in 
law or the evidence, and must be held to be erroneous. The question 
remains is the evidence of such character as to admit of a specific find- 
ing of priority of settlement upon the part of one or the other of the 
parties. An examination of the record is all that is necessary on this 
subject. The fact is not left either in doubt or uncertainty. The evi- 
dence unmistakably indicates that Moss reached the land and set his 
stake at least thirty minutes before Harding reached the tract. The 
local officers found Moss to have been the prior settler, and the record 
amply supports that finding. In fact, it is not seriously disputed by 
.contestant that Moss was first on the land, and the gravamen of his 
•contention is that, when he reached it, he performed no act of settle- 
4nent for a long time thereafter; that such as he did perform was in the 
public highway, and that was thereafter abandoned. The record does 
not support this contention. Upon the contrary, it warrants the specific 
finding that Moss reached the land at least half an hour in advance 
iof Harding, and staked it, setting a stake with his name over it and a 
handkerchief on it as a fiag. This stake was still standing on the 23d 
•of September, and presumably it remained undisturbed from the IGth 
until that time. It was sufficient notice that the land was taken and 
olaimed by Moss, and as an initial act of settlement it was followed 
"within a reasonable time by permanent improvements of value and by 



DECISIONS RELATING TO THE PUBLIC LANDS. 163 

residence. The finding of tbe local officers on these questions was 
proper. Your office decision is reversed, and the decision of the local 
officers affirmed. The contest is dismissed, and the entry of Moss held 
intact. 



BAHJEtOAB OBANT— LAN1>S EXCEPTED -SWAMP SELEOnOV. 

DOBN T. ELLINGSON. 

Tbe notation of a swamp land selection, appearing of record at the date a railroad 
grant becomes effective, will not operate to except the laud covered thereby 
from the grant, where prior thereto the approval of such selection has been 
revoked, and the selection itself snperseded by subsequent lists. 

Secretary Francis to the Oammwsioner of the Oeneral Land Office^ Feb- 
(I. H. L.) ruary 13^ 1897. (B. M. E.) 

This case involves the NE. J of the SW. J and the NW. J of the 
SE. J of Sec. 13, T. 98 N., R. 10 W., Des Moines land district, Iowa. 

The record shows that these tracts are within the ten mile limits of 
the grant to aid in the construction of the McGregor and Missouri 
Biver Bailroad under the act of May 12, 1864 (13 Stat., 72), and on 
June 19, 1879, were listed by the Chicago, Milwaukee and St. Paul 
Bailroad Company, successors in interest to the above mentioned road. 

On June 4, 1883, your office rendered a decision rejecting said listing 
of these lands, holding that the tracts in controversy, having been 
selected as swamp land on March 17, 1852, were by virtue of the act of 
March 3, 1857 (11 Stat., 251), confirmed to the State of Iowa. The 
railroad company filed no appeal as to this decision, but thereafter, 
to wit, on June 4, 1884, the said company filed an application for a 
reconsideration and revocation of that decision. 

On September 3, 1884, your office, acting upon this application denied 
it, and it was farther declared that the decision of June 4, 1883, was 
final. 

The company attempted to appeal, which right was denied them by 
your office, and thereafter an application was made for the issuance of 
a writ of certiorari, and on October 17, 1884, the Department refused 
the issuance of the writ. In the decision refusing such issuance the 
Department's action was based upon the laches of the petitioner and 
the decision did not pass iipon the merits of the case before your ofjce, 
it being said (L. & B. Press Copybook 109, p. 427), 

Bat if said decision is Dot well founded a review here of the rule therein adopted 
must be reserved until such time as a case involving swamp selections comes regu- 
larly before the Department. 

Your office decision of September 10, 1895, states that the question 
at issue in those proceedings (the decision of June 4, 1883, and those 
following) was the standing of what is known in your office as the 



[ 



164 DECISIONS RELATING TO THE PUBLIC LAND& 

<^ Sargent list", being a list of certain swamp selections in the State of 
Iowa which at one time had been approved by this Department, but 
subsequently such approval, upon the recommeudation of your office, 
had been rescinded. 

It appears that the tracts in controversy remain upon your records 
as *^ selected as swamp March 17, 1852,'' and the decision of your 
office now under consideration, for the purpose of clearing the record, 
'* directed that the selection be noted as canceled at this date." 

March 24, 1895, Elling H. ElHngson, the defendant-appellant, made 
homestead application and the local officers allowed the entry on a 
waiver by the Secretary of the State of Iowa showing that the selection 
above referred to did not appear among the swamp selections of the 
county wherein these tracts are situated. 

July 5, 1895, the local officers transmitted the record in the applica- 
tion of David Dorn to make final proof of his right to purchase the 
above described land under section five of the act of March 3, 1887 
(24 Stat., 657). 

The local officers took no action in the case, and in your office decision 
upon appeal you make the following finding of facts, which the record 
sustains: 

October 31, 1874, by deed (cootraot to sell) the McGregor A Missouri River R. E. 
Company conveyed the land in controTeray to David Dom for $400. 

Jnue 4, 1886, Dorn and wife, conveyed to Joseph M. Watts, for $3000; Watts, April 
7, 1893, mortgaged (to secure the loan of $2500) to Charles L. Hutchinson, and 
subsequently : 

February 15, 1894, Joseph M. Watts and wife, conveyed the land by warranty deed 
to said Elling H. EUingson for $2600, there being also an additional twenty acres of 
adjoining land conveyed in same deed. 

In this last mentioned trade Hutchinson executed a release of his mortgage, EUing- 
son (February 17, 1894) executing a mortgage to E. A. Hamill to secure $1600, of the 
purchase price mentioned. By stipulation of adverse parties in this case it was 
agreed, that EUingson, during February 1894, executed a mortgage, and delivered 
same to the First National Bank of Deeorah, Iowa, together with $1000 in money, for 
the benefit of Joseph M. Watts. Subsequently EUingson made homestead entry for 
the land, as shown, and enjoined said bank from paying or delivering said money or 
mortgage to Watts, and the bank still retains the same under said procoedings. 

In his pleading EUingson claims settlement on the land March 24, 1894, nine months 
prior to Dorn's present application to purchase. Also that he (EUingson) previously 
negotiated with Watts for the purchase of the land at the rate of $26.00 per acre. 

EUingson found during the pendency of the trade with Watts that the title still 
^'remained in the clouds with the swamp act, the R. R. act, and the U. S. Gov. reach- 
ing for it.'' EUingson claims he proposed that Watts get a perfect title (matters 
remaining in itaiu quo in the meantime) ''or get an adverse ruling from the U.S. 
Commissioner, or the proper State officers/' EUingson urges that Dom's interfer- 
ences, by applying to purchase under Sec. 5, act March 3, 1887, is, under the circum- 
stances a questionable proceeding, and alleges that Dorn in his preliminary affidavit 
to purchase swore that no person had settled on the land subsequent to 1882, while 
on cross examination he admitted he heard that ElUngson '' had received a home- 
stead fiUng.'' 

As has been set out, this case is before the Department upon the 



DECISIONS RELATING TO THE PUBLIC LANDS. 165 

ax>plication of Dom to purchase under the fifth section of the act of 
Congress of March 3, 1887 (24 Stat., 557), which is as follows: 

That where any said company shaU have sold to citizens of the United States, or 
tt> persons who have declared their intention to become such citizens, as a part of its 
grant, lands not conveyed to or for the nse of such company, said lands being the nnni- 
bered sections prescribed in the grant, and being ooterminons with the constructed 
parts of said road, and where the lands so sold are for any reason excepted from 
the operation of the grant to said company, it shall be lawful for the bona fide pur- 
chaser thereof from said company to make payment to the United States for said 
lands at the ordinary Government price for like lands, and thereupon patents shall 
is.sue therefor to the said bona fide purchaser, his heirs or assigns : Providedf That 
all lands shall be excepted from the provisions of this section which at the date of 
such sales were in the bona fide occupation of adverse claimants under the pre- 
emption or homestead laws of the United States, and whose claims and ooonpation 
have not since been voluntarily abandoned, as to which excepted lands the said pre- 
emption and homestead claimants shaU be permitted to perfect their proofo and 
entries and receive patents therefor: Provided further, That this section shall not 
apply to lands settled upon subsequent to the first day of December, eighteen hun- 
dred and e;gbty-two, by persons claiming to enter the same under the settlement 
laws of the United States, as to which lands the parties claiming the same as afore- 
said shall be entitled to prove up and enter as in other like cases. 

Counsel for the appellant argues in his well-considered brief that in 
order that one ma)' be entitled to purchase, it must appear that he 
acted in go'^d faith in so purchasing from the railroad company, and 
that in this case it cannot be said that he acted in good faith, inasmuch 
as it is claimed b}' counsel that an examination or review of the pro- 
ceeding had in reference to this tract discloses that the railroad com- 
pany had, and could have had, no title in the tracts in controversy; 
the record showing that fi'om 1852 up to the date of the decision 
appealed from this laud appeared of record as selected as swamp. In 
this connection it is proper to state that unless the land was excepted 
from the grant to this railroad company, the right to purchase under 
the act svpra does not exist. This brings up that question. 

On October 30, 18'.)1, by letter "K" your ofBce decision was rendered 
upon the authority and ei!ect of the ^^ Sargent list", hereinbefore 
referred to. From the facts therein set forth it appears that this list 
was filed in your oflSce on March 17, 1852, by George B. Sargent, sur- 
veyor general. In filing said list the surveyor general did not stat« 
that the State of Iowa had determined through its proper agents to 
accept his field notes as a basis of adjustment, but subsequently, on 
March 21, 1852, he so stated, but forwarded no agreement to this etfect. 
And thereafter, by act of the State legislature, January 13, 1853, the 
swamp lands were granted to the various counties and provision was 
made for survey and selection by county surveyors. So it appears that 
if the agreement was entered into as reported by letter from Mr. Sar- 
gent, this action upon the part of the legislature was a repudiation of it. 

UlK)n representation made to your office, on February 19, 1855, a 
oomniunication was by your office addressed to the Department, asking 
that the former approval of the '^ Sargent list " made by the Depart- 



166 DECISIONS RELATING TO THE PUBLIC LANDS. 

meDt upon the recommendation of the Commissioner of the General 
Land Office, be revoked, and thereafter, to wit, on March 1, 1855, said 
approval was revoked. Prior to this time other lists had been filed 
showing the swamp lands claimed by the State under the swamp act. 

As a matter of history, it may be stated in this connection that about 
1700 tracts were included in the " Sargent list," and the county sur- 
veyors under the authority of the act of the legislature, 8u;pra^ selected 
about 1300 of these tracts, leaving 400 tracts. And in your office, for 
a period of nearly thirty years after the revocation of the approval of 
the <^ Sargent list'-, it was treated as superseded by other lists filed. 
And your decision of October 30, 1891, gnyra^ states that this view 
was acquiesced in by the State, it not having ever set forward the 
claim that the lands specified therein were confirmed to the State by 
the act of 1857. 

The tracts in controversy were included in the " Sargent list", but 
have not been enrolled in any subsequent list filed in the place of and 
superseding that list. It was under these facts that the then Commis- 
sioner of the General Land Office, on June 3, 1883, held that this list 
was confirmed under the act of March 3, 1857 (11 Stat., 251). And 
thereafter, as has been set out, the Department refused to disturb that 
decision on account of the laches of the Eailroad Company. 

Was the land now in controversy excepted from the operation of the 
grant to aid in the construction of the McGregor and Missouri River 
Railroad under the act of May 12, 1864 (13 Stat., 72)1 

At that time there existed upon the records of your office, opposite 
these tracts, "selected as swamp March 17, 1852;" this record being 
made on account of the " Sargent list." The approval of that list had 
been revoked and it had been superseded by others when the grant 
was made. Under these facts it is clear that the land was not excepted 
from the operation of the grant by an invalid and repudiated selection. 
The clearing of the records in your office was a ministerial act, the 
failure to do which can in no wise affect the rights of the company. 

In the case of Anderson v. Northern Pacific Railroad Company et aU 
(7 L. D., 163) it was held (syllabus) : 

The oanceUation of an entry by the order of the Commissioner of the General Land 
Office takes eftect as of the date when the decision is made, and the fact that such 
order was not noted on the records of the local office nntil after the definite location 
of the road, though made prior thereto, would not operate to defeat the operation of 
the grant. 

So also in the case of Sioux City and Pacific Railroad Company t?. 
Wrich (22 L. D., 515), in which it was held (syllabus) : 

A school indemnity selection made prior to statutory authority therefor does not 
reserve the land covered thereby from the operation of a railroad grant. 

The Secretary of the Interior is charged with the adjustment of railroad grants^ 
and should withhold from other disposition lands granted for such purposes, even 
though the grantee may fail to aj)peal from an erroneous adverse decision of the 
Geueral Laud Office. 



DECISIONS RELATING TO THE PUBLIC LANDS. 167 

And also Knigbt v. United States (142 U. S., 101). 

My conclnsious are that there was no existing claim at the date of 
the attachment of the railroad's right to these tracts that conld oper- 
ate to prevent the railroad company from acquiring title, and therefore 
that David Dorn, the defendant herein, is not entitled to purchase under 
the said section of the said act, but that the land involved passed to the 
railroad company. 

The purchasers from the company are amply protected by this 
decision. 

The decision appealed from is accordingly reversed. 



TIMBKB O U 'ITl'lN G— ST AT U TOBX FB0TI8I09B. 

Instructions. 

In ooostraing the provisions coDtaioed in the two acts of Jane 3^ 1878, and the act of 
Angast 4, 1892, with respect to timber cutting, it mnst be held that the first of 
said acts of 1878 (20 Stat., 88), relates to all mineral lands of the United States, 
bat to none of nny other character, and permits the cutting of timber on such 
lands for building, <igricnltnra], mining, and other domestic purposes, but not 
for the parpose of sale or commerce, and that the second of said acts (20 Stat., 
89), as amended by the act of 1892, relates to all non-mineral lands of the United 
States, in all public land States, and prohibits the catting of timber on snob 
lands, except as therein otherwise provided. 

Secretary Francis to the Commissioner of the Oeneral Land Office, Feb- 
(I. H, L.) ruary 23, 1897. (W. 0. P.) 

I am in receipt of yonr communication of May 25, 1896, asking to be 
advised as to the proper construction of the acts of Congress of June 
3, 1878 (20 Stat., 88), June 3, 1878 (20 Stat., 89), and of August 4, 1892 
(27 Stat., 348), all of which contain provisions relating to the cutting 
of timber on the public lands. 

The act of June 3, 1878 (20 Stat., 88), which may be designated as^ 
act No. 1, is entitled: 

An act authorizing the citizens of Colorado, Nevada, and the Territories to fell and 
remove timber on the public domain for mining and domestic purposes — 

and the first section reads as follows : 

That all citizens of the United States, and other persons, bona fide residents of th» 
State of Colorado or Nevada, or either of the Territories of New Mexico, Arizona, 
Utah, Wyoming, Dakota, Idaho or Moutana, aud all other mineral diHtricts of the- 
United States, shall be, and are hereb}', authorized and permitted to fell and remove^', 
for bailding, agricultural, mining, or other domestic purposes, any timber or other 
trees growing or being on the public lands, said lands being mineral, and not sub- 
ject to entry under existing laws of the United States, except for mineral entry, in. 
either of said States, Territories or districts of which such citizens or persons may, 
be at the time bona fide residents, subject to such rules and regulations as the Secre- 
tary of the Interior may prescribe for the protection of the timber and of the under-. 
growth growing upon such lands, and for other purposes: Provided, the provisions 
of this act shall not extend to railroad corporations. 



16 i DEClSlOxXS RELATING TO THE PUBLIC LANDS. 

The secoud section provideB that the register and receiver of local 
land offices in whose district any mineral land may be situated shall 
ascertain from time to time whether any timber is being cut upon any 
sach land, except for the purposes authorized by said act, and if so, to 
report, the fact to the General Land Office, and section three provides 
I)enalties for the violation of the provisions of the act. 

The other act of June 3, 1878, which may be designated as act No. 2, 
is entitled: 

An act for the sale of timber lands in the States of CaUfomia, Oregon, Nevada, snd 
in Washington Territory. 

The first section of this act authorizes the sale of public lands in ^^the 
States of California, Oregon and Nevada and in Washington Terri- 
tory" which are valuable chiefly for timber and stone thereon, but 
unfit for cultivation ; the second and third sections specify the mode of 
procedure in such cases, and section four prohibits the cutting of tim- 
ber on the public lands. It reads as follows : 

That after the passage of this act, it shall be unlawful to ont, or cause or proonrs 
to be cut, or wantonly destroy, any timber growing on any lands of the United 
States, in said States and Territory or removci or cause to be removed, any timber 
fVom said lands, with intent to export or dispose of the same ; and no owner, master 
or consignee of any vessel, or owner, director, or agent of any railroad, shall know- 
ingly transport the same, or anj- lumber manufactured therefrom; and any person 
violating the provisions of this section shall be guilty of a misdemeanor, and, on 
eonviction, shall be fined for every such offense a sum not less than one hundred nor 
more than one thousand dollars : Provided, That nothing herein contained shall pre- 
vent any miner or agriculturist from clearing his land in the ordinary working of 
his mining claim, or preparing his farm for tillage, or from taking the timber neces- 
sary to support his improvements, or the taking of timber for the use of the United 
States ; and the penalties herein provided shall not take efiect until nine^ days 
after the passage of this act. 

The fifth section provides for relief from prosecutions under Sec. 2461 
of the Revised Statutes, and the sixth section repeals all acts or parts 
of acts inconsistent with the provisions of this act. 

The third act spoken of in your letter is that of August 4, 1892 (27 
Stat., 348), and is entitled: 

An act to authorize the entry of lands chiefly valuable for building stone under 
the placer mining laws. 

The first section of this act provides for the entry of lands chiefly 
valuable for building stone under the provisions of the law in relation 
to placer mineral claims, and the second section, which relates to the 
subject now under consideration, reads as follows: 

That an act entitled "An act for the sale of timber lands in the States of Cali- 
fornia, Oregon, Nevadn, and Washington Territory" approved June third, eighteen 
hundred and seventy-eight, be, and the same is hereby, amended by striking oat the 
words *' States of California, Oregon and Nevada, and Washington Territory^' where 
the same occur in the second and third lines of said act, and insert in lien thereof 
the words " public laud States," the purpose of this act being to make said act of 
June third eighteen hundred and seventy-eight, applicable to all the public land 
States. 



DECISIONS RELATING TO THE PUBLIC LANDS. 169 

The proper coDStmction of the two acts of Juue 3, 187S, was consid- 
ered by the United States circuit court in the case of United States v. 
Smith (11 Fed. Eep., 487), particularly as to their operation within the 
State of Oregon. It was there held that act No. 2 was operative in 
that State to the exclusion of act No. 1. It was said in the course of 
that decision that the provision in act No. 2, making it unlawful to cut 
any timber on any public land in Oregon, except that cut by a miner 
or agriculturist in the ordinary working or clearing of his mining 
claim or farm is inconsistent with and repugnant to the license to cut 
contained in act No. 1; that both provisions could not be in full force 
in the same place. This decision was cited in the decision in United 
States V* Benjamin (21 Fed. Hep., 285), and it was held that the pro- 
visions of the act (No. 1) authorizing the cutting of timber on the 
public lands was not applicable to Oalifornia. 

These decisions were rendered on April 21, 1882, and August 18, 1884, 
respectively. This Department on May 25, 1882, considered a number 
of eases of trespass in cutting timber on mineral lands in the Territory 
of Dakota, and gave certain instructions in the case of Frank P. Har- 
din et al. (1 L. D., 597). Secretary Teller then said: 

The aet of Cougrnss approved June 3, 1878, entitled ''An act authorizing the citi- 
zens of Colorado, Nevada, and the Territories, to fell and remove timber from the 
public domain for mining and domestic purposes'' clearly authorizes the cutting of 
timber on the mineral lauds of the United States for domestic use 

It has been alleged that the act of June 3, 1878, does not apply to persons cutting 
timber on the mineral lands for sale, and that to enable any person t<o have the 
benefit of that act, he must cut the timber for his peraonal use, and not for sale. 
Such a construction defeats the very intent of the act, which was to allow the settler 
on the mineral lands to have the benefit of the timber thereon growing for use 
within the Territory or State where it grew. 

The purpose and scope of the act were discussed at some length, and 
the conclnsion reached is that expressed in the foregoing quotation. 
These views were incorporated in a circular upon said act issued by 
your office June 30, 1882, and approved by this Department (1 L. D., 
697), it being said : 

All citizens and bona fide residents of the States and Territories mentioned therein 
are antiiorized to fell and remove or to purchase from others who fell and remove, 
any timber growing or being upon the public mineral lands in said States or Terri- 
tories: i*rorided 

1. That the same is not for export from the State or Territory where out. 

2. That no timber less than eight (8) inches in diameter is cut or removed. 

3. That it is not wantonly wasted or destroyed. 

The attention of this Department was in that same year specifically 
directed to the apparent conflict in the provisions of said acts of June 
3, 1878, by a letter from your office requesting instructions in regard to 
the administration thereof. In departmental letter of August 7, 1882 
(1 L. D., GOO), it was held in substance that the words "all other min- 
eral districts of the United States" appearing in act No. 1 brought 
within the provisions of said act not only the mineral lands in the States 



170 DECISIONS RELATING TO THE PUBLIC LANDS, 

and Territories Darned but also those in all mineral districts outside 
such States and Territories, it being specifically said that — 

all privileges granted to inbabitants of mineral districts of tbe States and Territories 
named in the act were granted to tbe inbabitants of sncb mineral districts of Cali- 
fornia. 

It was held that the two acts could apply in the same State upon the 
theory that act No. 1 related to mineral lands and to that class of lands 
only. That this was recognized as the proper construction is further 
evidenced by a circular of October 12, 1882 (1 L. D., 695), wherein it 
was said that the cutting of mesquite on the public mineral lands of 
the United States was allowable under the provisions of said act No. 1, 
while the cutting of such trees upon non -mineral lands was prohibited. 
This holding seems to have been modified to a certain extent by later 
circulars. In the circular of May 7, 1886 (4 L. D., 521), it is said in 
regard to act No. 1 — 

Tbe act applies only to tbe States of Colorado and Nevada, and to tbe Territories 
of New Mexico, Arizona, Utab, Wyoming, Dakota, Idaho and Montana, and other 
mineral districts of tbe United States not specifically provided for, and doee not 
apply to the States of California or Oregon nor to tbe Territory of Washington. 

Til at is act No. 1 was held to apply to mineral lands in all States and 
Territories therein mentioned, also to all mineral districts outside of 
the States specifically named in act No. 2, but not to mineral lands in 
the States expressly named in act No. 2 except those in Nevada, which 
is named in both acts. 

Further on in this circular it is said: 

4th. Timber felled or removed shall be strictly limited to bnllding, agrioaltnral, 
mining and other domestic purposes. 

All en t ting of sncb timber for sale or commerce is forbidden. Bnt for bnllding, 
agricultnral, mining and other domestic purposes each person authorized by the act 
may cut or remove for him or her own use, by bimself or herself, or by his, her or 
their own personal agent or agents only. 

The two acts of 1878 having been passed upon the same day should 
be treated as one act and so construed, if possible, as to give each pro- 
vision of each act effect. 

Act. No. 1 permits the cutting of timber for certain purposes upon 
mineral lands of the United States in the ^' States of Colorado or Nevada 
or either of the Territories of New Mexico, Arizona, Utah, Wyoming, 
Dakota, Idaho or Montana and all other mineral districts of the United 
States"; and act No. 2 prohibits the cutting of timber on any lands of 
the United States in "the public land states", with the proviso, how- 
ever, that nothing therein contained shall prevent any miner or agri- 
culturist from clearing bis land in the ordinary working of his mining 
claim or preparing his farm for tillage, or from taking the timber nec- 
essary to support his improvements.' This statement presents the appar- 
ently conflicting provisions of the two laws, the existence of which 
necessitates construction. If the conclusion of the circuit courts, as 
announced in the decisions hereinbefore cited, that the two acts cannot 



DECISIONS RELATING TO TUB PUBLIC LANDS. 171 

operate in the same place, is to be accepted as correct, then it will be 
necessary to determine which of the two is to prevail. 

This Department has held, however, that both acts app?y in Nevada, 
and if this holding is to be adhered to, it wonld necessarily follow that 
both acts are to be held operative in the other public laud states brought 
within the provisions of act No. 2 by the amendatory act. This rule, so 
long followed in the administration of these laws, should not be changed, 
unless it is clearly erroneous. It has been the policy to regard the 
mineral lands in a different light from other public lands of the United 
States, and the result has been a separate and distinct system of laws 
in relation to them. It was evidently this consideration that led to the 
conclusion by the Department that the two acts might stand, and both 
have effect in the same State. This theory seems to be the only reason- 
able one to explain the enactment of two laws upon the same day, which 
are apparently contradictory. This construction gives effect to both 
laws, allowing to each operation in its peculiar sphere, and should be 
adhered to if there be nothing to show a contrary intention upon the 
part of Congress. 

The statement in instructions of August 7, 1882 (1 L. D., 600), in 
regard to act No. 2: 

By the express provision of section 2 the mineral lands in the broadest sense of 
that term are ezcladed from the provisions of said chapter 

is true because the primary object of that legislation was to provide for 
the sale of lands that were not mineral in character and were at the 
same time unfit for agricultural purposes. It may be said the insertion 
of the provision in said act allowing the cutting of timber upon mining 
claims negatives the proposition that the general prohibition against 
cutting was not intended to apply to mineral lands. There is some 
force in that statement, but the inference has not sufficient weight to 
overcome the other express statements. 

In the instructions issued under act ISo. 1 June 30, 1882, it was held 
that timber might be cut from mineral lands for sale to citizens and 
bona fide residents of the States and Territories named in said act. In 
the instructions of May 7, 1886 (4 L. D., 621), the cutting of timber for 
sale or commerce was forbidden, but in those of August 5, 1886 (5 L. 
D., 129), the right to cut timber for sale was recognized. I cannot 
agree with this latter position. The express provision is that timber 
may be cut "for building, agricultural, mining or other domestic pur- 
poses."' If it had been intended to make the timber on the public lands 
au article of trade and commerce there should have been inserted 
therein such a provision as "or for sale to bona fide residents for such 
purposes." 

The license given under this provision is in derogation of the rights 
of the public and must therefore be strictly construed and limited to 
the cases clearly and unequivocally specified in the act. The words 
used do not include a license to cut timber for the purpose of sale, and 
such a license cannot i)roperly be included by implication. 



172 DECISIONS RELATING TO THE PUBLIC LANDS. 

The proper eonstmctioD of these laws would seem to be, No. 1 relates 
to all mineral lands of the United States, but to none of any other 
character, and permits the cutting of timber on such lands for building, 
agricultural, mining and other domestic purposes, but not for the pur- 
pose of sale or commerce, while act No. 2, as amended by the act of 
1892, relates to all non-mineral lands of the United States in all public 
land States, and prohibits the cutting of timber upon such lands, except 
as therein otherwise provided. 

The effect of this act No. 1 as construed by the Department having, 
as yon state, <^ resulted in wholesale devastation of timber on such 
lands for purposes of speculation and personal gain " affords sufficient 
reason for reconsidering the matter for the purjiose of correcting the 
evil if possible. Furthermore a change of the ruling as to the construc- 
tion of said act could not affect any vested rights as it would simply 
operate as a revocation or limitation of the restricted license to cut 
recognized under the construction heretofore given said act. There 
seems therefore to be good reasons for changing the instructions under 
said act, and no valid reason against such action at this time. 

You will at once prepare instructions in accordance with the views 
herein set forth to take effect upon such future date as may seem proiter, 
and submit the same for approval. 



RATLROAD GBANT— MINERAL LANI>S-ACT OF MARCH 8« 188T. 

Walker v. Southern Pacific R. R, Co. 

Prior to the approval of a railroad iudemnity selection the land incladed therein, 11 
mineral in character, is open to exploration and purchase under the mining laws 
of the United States. 

The existence of a mineral location raises the presumption that the location has 
been made in conformity with law, and that the laud covered thereby is mineral 
in character. 

Where mineral is found, and it appears that a person of ordinary prudence would be 
justified in further expenditures, with a reasonable prospect of success in devel- 
oping a mine, the laud may be properly regarded as mineral in character. 

Section 5, act of March 3, 1887, does not confer upon a purchaser from a railroad 
company, where the title of the company fails, the right to purchase from the 
government land known to be valuable for its mineral. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
(I. H. L.) ruary 23^ 1897. (B, B., Jr.) 

This is an appeal by the Southern Pacific Railroad Company and J. 
T. McGratb, in the case of S. E. Walker against the said company and 
McGrath, from your oflice decision of December 21, 1895, holding so 
much of the NW. J of the IN'E. J and the SE. J of the NW. J of section 
9, T. 6 S., R. 3 W., S. B. M., Los Angeles, California, land district, as is 
<iinl)rnced in the Green Mountain and Lucky Boy quartz mining claims 
^'to be mineral land, and therefore excepted from the grant to said 



DECISIONS RELATING TO THE PUBLIC LANDS. 173 

railroad company," and the company's indemnity selection per list Xo. 
13 for cancellation to that extent, and that McGrath had no ri^^lit to 
purchase the land thus decided to be mineral, ander the fifth section 
of the act of March 3, 1887 (24 Stat, 556). 

It appears that said Walker duly instituted a contest December 19, 
1891, against said company, alleging that the tracts above described 
contained veins and lodes of rock in place bearing gold and were more 
valuable as mineral than as agricultural land. In due course of pro- 
ceedings, which are recited in said decision, but not necessary to be set 
out here, the case came before the Department on appeal December 5, 
1894, unreported, and it appearing that the testimony was insufficient 
as a basis for a judgment, the case was remanded for a further hearing. 
Said McGrath was allowed to intervene at the second hearing as the 
purchaser from the company of the NE. ^ of said section. 

The second hearing which was begun April 23, 1895, and ended May 
7th, following, resulted in a decision July 22, 1896, by the local office, 
in favor of Walker, which was affirmed by your office as already indi- 
cated, whereupon McGrath and the company prosecute here their sepa- 
rate appeals. Both appellants assign error (1) in not holding that the 
company's right to the land vested at once upon its selection thereof, 
and that its right coald not be defeated by the subsequent discovery of 
mineral thereon, and (2) if the company's right did not then vest, in 
holding that the land was shown to be valuable for its minerals; and 
said McGrath assigns error (3) in holding that he was not entitled to 
purchase the land from the government by reason of his alleged pur- 
chase from the company, under the fifth section of the act of March 3, 
1887 {svpra). 

The land in controversy is within the indemnity limits of the grant 
by act of March 3, 1871 (16 Stat., 579), to the said company, to aid in 
the construction of its branch line, the location of which was definitely 
fixed April 3, 1871 (Duncanson v. Southern Pacific K. B. Co., 11 L. D., 
538), and is embraced in the company's selection filed July 13, 1885, as 
per indemnity list No. 13; but this selection, as to such land, has not 
been approved by the Secretary of the Interior. This grant by the 
23d section of the act is made^ 

with the same rights, grants, and privileges and snhjeot to the same limitations, 
restriction^^ and conditions as were granted to said Southeru Pacific Railroad Com- 
pany of California by the act of July twenty -seTen, eighteen hundred and sixty six. 

Section 3 of the act last mentioned (14 Stat., 294) expressly reserved 
''all mineral lands" from the operation of the act, and provided for the 
selection "by said company," "under the direction of the Secretary of 
the Interior" of indemnity lands for lands lost to the company within 
the primary limits by reason of any grant, sale, reservation, occupation 
by homestead or pre-emption settlers, or other disposition, prior to 
definite location. 

In the ease of the Wisconsin Central Railroad Company v. Price 



174 DECISIONS RELATING TO THE PUBLIC LANDS. 

Connty (133 U. S., 496), iuvolviDg tbe qaestiou as to when the title to 
indemDity lands granted by Congress passed to the State of Wisconsin 
to aid in the constraction of a certain line of railroad, in which the 
provisions of the grant as to selection of such lands were similar to 
those in the case under consideration, Mr. Justice Field, speaking for 
the Supreme Court, said : 

For Buch lands no title could pass to the company not only until the selections 
were made by the agents of tbe State appointed by the govemory bnt until soch 
selections were approved by the Secretary of the Interior. The agent of the State 
made the selections, and they had been properly authorized and forwarded to the 
Secretary of the Interior. But that oflQcer never approved them. Nor can such 

approval be inferred from his not formally rejecting them The approval of the 

Secretary was essential to the efficacy of tbe selections, and to give to the company 
any title to the lands selected. His action in that matt'Or was not ministerial but 

Judicial There could be no indemnity until a loss was established. And in 

determining whether a particular selection could be taken as indemnity for the losses 
sustained, he was obli);ed to inquire into the condition of those indenmity lands, and 
determine whether or not any portion of tbem had been appropriated for any other 
purpose, and if so, what portion had been thus appropriated, and what portion still 
remained. This action of the Secretary, was required, not merely as supervisory of 
the action of the agent of the State, but for the protection of tbe United States 
against an improper appropriation of their lands. Until tbe selections were approved 
there were no selections in fact, only preliminary proceedings taken for that purpose ; 
and the indemnity lands remained unaffected in their title. Until then, the lands 
which might be taken as indemnity were incapable of identification; tbe proposed 
selections remained the property of the United States. The government was, indeed, 
under a promise to give the company indemnity lands in lieu of what might be lost 
by the causes mentioned. Bnt such promise passed no title, and, until it was 
executed, created no legal interest which could be enforced in the courts. 

The doctrine thus authoritatively declared has been recognized in 
other decisions of the same court and stands to-day as law upon the 
point under discussion. In this case no approval of the Secretary has 
been given to the company's selection. The land, if mineral in charac- 
ter, is now and heretofore has been open to exploration and purchase 
under the mining laws of the United States — the grant to the company 
having expressly excepted mineral lands from its operation. 

It is practically conceded by the defendants in this case that the 
laud contains some mineral — gold and silver. The soil is shown to be 
poor and thin and the land at best to be of very little value for agri- 
cultural purposes. Whether gold and silver have been shown to exist 
in such quantities as to render the laud chiefly valuable for mining 
purposes is a disputed question. The testimony upon this question is 
somewhat conflicting. Both the local office and your office found in 
the affirmative, that is, that the land is chiefly valuable for its minerals; 
and the testimony is set out at some length in your office decision. I 
find, upon careful examination of the testimony, no warrant therein to 
dissent from the conclusion on this point reached by your office. 
Although the best evidence of Walker's alleged location of said mining 
claims — duly certified copies of the location notices — was not filed, the 



DECISIONS RELATING TO THE PUBLIC LANDS. 175 

testimony is ample to show that such locations existed, that of the 
Greeu Moan tain having been made in 1891, and of the Lucky Boy in 
1892. No objection was made to the admission of this testimony. 

The presumption then was, at the date of the hearing, that these 
locations had been made conformably to law and that the land was 
mineral in character. This was a rebuttable presumption, but until 
overthrown by competent and sufficient evidence it fixed the burden of 
proof upon the defendants (Sweeney v. Northern Pacific R. R. Co., 20 
L. D., 394) They not only failed to carry successfiilly the burden of 
proving the non mineral character of the laud, but|>^ contra, the testi- 
mony of their own witnesses, taken as a whole, is rather favorable than 
otherwise to the mineral claimant. Samples of ore taken from the 
dumps at various shafts and open cuts on the claims which are upon 
the same vein extending from northeast to southwest diagonally through 
the legal subdivisions described above, showed upon assays, as testified 
by a mining engineer and expert for the defendants, various values in 
gold and silver from a trace to nearly $24.00 per ton. These claims are 
shown to be but little developed as yet. It is also shown that their 
mineral value increases as their development is extended. 

The fact that a milling test of thirteen tons of ore taken from a 
development shaft on the Lucky Boy, comparatively near the surface, 
in 1892, ran about $6.50 per ton in gold and silver, although scarcely 
enough to pay for the milling by the inadequate process employed, as 
testified by another of defendant's witnesses, is not wholly unfavorable 
to the contestant, to say the least. The contestant has expended 
about $800 on the two claims, and from the testimony introduced by 
him the present value of the Lucky Boy, which is the better developed 
claim — although some of the richest ore has recently been found on 
the Green Mountain— is from $4,000 to $5,000, and the Green Mountain 
from $1,000 to $3,000. I am well satisfied that the rule laid down by 
the Department in the case of Castle v. Womble (19 L. D., 456), " that 
where minerals have been found, and the evidence is of such a charac- 
ter that a x>erson of ordinary prudence would be justified in the further 
expenditure of his labor and means with a reasonable prospect of sue- 
cess, in developing a mine, the requirements of the statute have been 
met" applies in this case in favor of the contestant. 

Section 5 of the act of March 3, 1887, supra^ under which McGrath 
claims the right to purchase from the United States, reads: 

That where any said company shaU have sold to citizens of the United States, or 
to persons who have declared their intention to become such citizens, as a part of 
it« grant, lands not conveyed to or for the use of sach company, said lands being 
the nnmbered sections prescribed in the grant, and being coterminous with the con- 
atractcd parts of said road, and where the lands so pold are for any reason excepted 
from the operation of the grant to said company, it shall be lawful for the bona fide 
parchaser thereof from said company to make payment to the United States for said 
lands at the ordinary government price for like lands, and thereupon patents shall 
iaaoe therefor to the said bona fide purchaser, his heirs or assigns : Provided, That 



176 DECISIONS RELATING TO THE PUBLIC LANDS. 

all landii shall be excepted from the proTisions of thin section which at the date of 
such sales were in the bona fide occnpation of adverse claimants nnder the pre- 
emption or homestead laws of the United States, and whose claims and occnpation 
have not since been yoluntarily abandoned, as to which excepted lands the said pre- 
emption and homestead claimants shall be permitted to perfect their proofs and 
entries and receive patents therefor : Provided further. That this section shall not 
apply to lands settled upon subsequent to the first day of December, eighteen hun- 
dred and eif!hty-two, by persons claiming to enter the same under the settlement 
laws of the United States, as to which lands the parties claiming the same aa afore- 
said shall be entitled to prove up and enter as in other like cases. 

I am convinced, after careful examination and consideration of this 
section in the light of the laws relative to the acquisition of title to 
mineral landn, and the decisions of this Department and the supreme 
court of the United States, bearing upon the question, that this section 
was not intended to confer upon the purchaser therein indicated from 
^^any said company" the right to purchase from the United States 
lands known to be valuable for their minerals. Such lands are subject 
to disposition by the United States under the mining laws only. (Sec- 
tions 2318, 2319 Revised Statutes: DeflTeback v, Hawke, 115 U. S., 392; 
Davis's Administrator r. Weibbold, 139 U. S., 607.) 

The company's objection urged against the proposed cancellation of 
its selection as to the land embraced in said mining claims to the effect 
that, inasmuch as no record evidence of the locations is on file in the 
case, the boundaries and area of the claims are not definitely shown, 
segregation of these claims from the tracts in which they lie can not 
be made, is without force in this proceeding. Segregation is not nec- 
essary to the judgment of cancellation. The necessity for segregation 
will not arise until in connection with favorable action looking to the 
approval and patenting of these tracts, in whole or in part, under the 
company's selection, or in connection with other proceedings to secure 
title to these tracts or some portion thereof. It is shown, as already 
stated, that due locations of these claims have been made, and from 
these locations the boundaries and area of the claims can be determined 
whenever necessary so to do. The parol evidence which shows these 
locations was admitted without objection by the parties defendant and 
is sufficient for purposes of this decision. Objection to such evidence 
comes too late, therefore, on appeal. 

The decision of your office is affirmed in accordance with the fore- 
going views. The company's selection will be canceled as to land 
embraced in said mining claims. 



Thb State of Flobida. 

Motion for review of departmental decision of August 27, 1896, 23 
L. D.y 237, denied by Secretary Francis, February 23, 1897. 



DECISIONS RELATING TO THE PUBLIC LANDS. 177 

RELt5^QUISHMENT— AGENT- ADVERSE CLAIM. 

Wood r. Wood. 

A relinqaishment executed for the benefit of one holding a confidential and fiduciary 
relation to the entryman, can not be recognized as of any validity in the presence 
of a just and equitable adverse claim. 

Secretary Francis to the Commissioner of the General Land Office j Feb- 
{I. H. L.) ruary 23, 1897. (J. L.) 

This case involves the S. J of the NE. J and the !N". J of the SE. J of 
section 33, T. 6 X., E. 21 W., Gainesville land district, Florida. On 
May 29, 1888, Eobert E. Wood made homestead entry No. 18,658 of 
said tract, claiming settlement on September 15, 1887, and improve- 
ments consisting of dwelling-house, kitchen, stable, crib, cotton-house, 
wagon-shelter, and twenty acres in cultivation. On March 24, 1894, 
Willis C. Wood filed in the local office a paper, dated February 19, 
1894, purporting to be Eobert E. Wood's relinquishment of said tract 
to the United States. Thereupon Eobert E. Wood's entry was can- 
celed, and Willis O. Wood made homestead entry No. 24,504 of said 
tract. 

Robert E. Wood died on April 11, 1894. On June 19, 1894, his widow, 
Alice Wood, filed her affidavit of contest against Willis 0. Wood's 
entry in the following words : 

To ike Register 4r Receiver of the United States Land Office, at Gainesville, Fla, 

Yoar petitioner, Mfb. Alice Wood, being over the age of twenty one years and a 
native bom citizen of the United States, brings this her petition of contest agaiust 
Willis C. Wood and for cause says — 

That one B. F. Cockcroft about the year A. D. 1874 settled upon, improved and 
caltivated certain public lands to-wit:— 

The S. i of NK. i andN. + of SE. iof Sec. 33, T. 6 N., R. 21 W., situated in Walton 
county, Florida. 

That about the year A. D. 1884 Robert JohnsoUj the petitioner's father, purchat^ed 
for a good and valuable consideration the claim and improvements of the said B. F. 
Cockcroft in and to said land. 

That your petitioner and her father, the said Robert Johnson, after the purchase 
aforesaid took possession of said land and continuously resided upon and cultivated 
the same until about the year A. D. 1887 when the said Robert Johnson died. 

That the said Johnson h^ft beside your petitioner one other heir and the said heirs 
amicably divided the estate, your petitioner receiving as a part of her share the 
claim and improvements on said land. 

That about the year A. D. 1886 your petitioner was married to one Robert E. Wood 
who until his death resided with your petitioner on said land. 

That the said Robert E. Wood about the year 1888 made application for homestead 
tntty on said land which application was granted on the29tli day of May, A. D. 1888. 

That on the 10th day of April, A. D. 1894, the said Robert E. Wood died, and 
shortly after his death your petitioner duly applied to Hon. Alex. Lynch, register, 
Gainesville, Florida, for permission to make final proof as widow of Robert E. Wood 
deceased. 

That your petitioner was informed by the said register that the homestead entry 
of Robert E, Wood had been relinquished to Willis C. Wood and that the entry of 
10671— VOL 24 12 



178 DECISIONS RELATING TO THE PUBLIC LANDS. 

the said Robert E. Wood was canceled on March 24th, A. D. 1894 and that Willis C. 
Wood had entered the same. 

That the said Willis C. Wood is not in possession of said laud but your petitioner 
is in possession of, resides on, and cultivates the same and has ever since the pur- 
chase by her father from the said B. F. Cockcroft. 

That yonr petitioner is advised, informed and believes that her hnsband, the said 
Robert E. Wood, nevt^r relinquished said entry to the said Willis C. W-ood and that 
the said relinquishment vr&s only gotten up to defraud your petitioner out of said 
land. 

That your petitioner is poor and wholly dependent upon the products of said land 
for support. 

Wherefore your petitioner asks that she be permitted to prove the foregoing alle- 
gations, and that said ])reteuded relinquishment by Robert £. W^ood be canceled, and 
that the entry of Robert K. Wood he reinstated, that your petitioner be allowed to 
make final proof as widow of Robert £. Wood deceased. 

That you name a day and place where she will be permitted to prove the foregoing 
allegations; that the proper notice be given the said Willis C. Wood of said bearing 
that you grant such other or farther relief as to j^ou will seem just and right and 
that she pay the expenses of this contest. 

After a hearing at which both parties were present in person and by 
counsel, the local officers, on October 19, 1894, found as matter of fa€t, 
'*that the relinquishment on file was not executed by Robert E. Wood, 
but by Willis C. Wood/' And thereupon they recommended that 
Willis C. Wood's eutry No. 24,504 be canceled; that Robert E. Wood's 
entry No. 18,658 be reinstated; and that Alice Wood, the widow^ of 
Robert K. Wood be permitted to make final proof thereon. 

Willis O.Wood appealed ; and on March 23, 1895, your office reversed 
the decision of the local officers and allowed his entry No. 24,504 to 
stand, subject to further appeal. 

Alice Wood appealed to this Department; and on April 24, 1896, the 
Department affirmed the decision of your office. On June 10, 1896, the 
Department entertained a motion for review filed by Alice Wood. On 
August 28, 1896, said motion was dismissed. And on September 4, 
1896, Alice Wood by her attorney filed here, her petition for a re-review 
and re-examination of the case, and a revocation of the former de})art- 
mental orders therein. Said petition was entertained on October 6, 
1896, and the case is now before the Secretary for further consideration. 

At the hearing, the chief controversy between the parties was, 
whether the signature to the relinquishment was genuine or not! 
Whether the relinquishment was or was not a forgery, '* only gotten 
up to defraud the petitioner out of said land"! The local officers 
favored the ^* hypothesis of forgery ", and found as hereinbefore stated 
" that the relinquishment on file was not executed by Robert E. Wood 
but by Willis C. Wood." This finding of the local officers was over- 
ruled by your office, and also twice by this Department. The i)resent 
Secretary of the Interior will not disturb the finding of his predecessor 
as to this point. 

But it is obvious that the minds of the officers who rendered the 
I)revious decisions in this case, were chiefly occupied with considera- 



DECISIONS RELATING TO THE PUBLIC LANDS. 179 

tion of the testimony as it related to the question of forgery. Conse- 
quently other facts and matters clearly established by the evidence, 
and involving questions of law and equity material to a just judgment 
in this case, were not fully considered. 

From and after the year 1880, the time of the recognized development 
of the cancerous disease which terminated in Robert E. Wood's death, 
Willis C. Wood sustained towards his elder brother Robert, an intimate 
and confidential fiduciary relation. He was Robert's nurse, his pro- 
tector, his adviser, his agent, his attorney at-law, the keeper of his 
accounts and the manager of his finances. Robert's confidence in Wil- 
lis was absolute, and Willis's influence over Robert was unbounded. 
This relation imposed upon Willis the duty of protecting Robert against 
himself; against the consequence of any act that might be prompted 
by a sense of helplessness and dei)endence, and by fraternal gratitude 
and affection. It matters not whether the proposition for a relinquish- 
ment of the homestead, was initiated by Willis or by Robert, Willis 
was not authorized to accept it. Neither law nor equity will permit 
advantage to be taken of such confidence and influence. (See Story's 
Equity Jurisprudence Sections 307,311 and others.) In view of the 
testimony showing the relations between the parties as herein set out, 
the burden was upon Willis to prove the legality and righteousness of 
the relinquishment in question by clear and convincing evidence. The 
testimony falls far short of this requirement of law and equity. 

On February 19, 1894, Robert E. Wood went as usual to his brother's 
mill to have his face dressed. Then and there, in the presence of 
Willis, and of his niece and her husband (who were also employees of 
Willis), the relinquishment was executed and attested. It was not 
filed until March 24, thirty-three days afterwards. Robert E. Wood 
lived until AprU 11, eighteen days after that. During those fifty-one 
days Willis made no attempt to take possession of his alleged home- 
stead. The whole transaction was carefully concealed from Mrs. Alice 
Wood. When after the lapse of a decent interval, she applied at the 
local office to make final proof of her deceased husband's homestead 
entry, she* was told by the register what had been done, so far as shown 
by the records of his office. 

From the year 1882, Mrs. Wood lived upon the land with her father 
Robert Johnson until his death in September, 1887, a period of five 
years. In January, 1887, Robert E. Wood married her, and moved upon 
tbe land, and lived there with her and her father until the father's 
death. Being then a married woman, and so disqualified to make entry 
in her own right, her husband Robert E. Wood made entry in his own 
name on May 29, 1888, claiming settlement on September 15, 1887, the 
date of the wife's father's death. Mrs. Wood lived upon the land with 
her husband from September 15, 1887, until the day of his death, Apnl 
11,1894; another period exceeding five years. But for the interven- 
tion of the relinquishment aforesaid, Mrs. Wood would have been 



180 DECISIONS RELATING TO THE PUBLIC LANDS. 

clearly entitled to make proof under her husband's entry, and thus 
acquire title to the whole tract. 

This Department after mature consideration of all the facts and 
circumstances, will not permit Willis C. Wood to appropriate to his own 
use the whole real estate of his trustful and dependent brother, under 
color of a relinquishment to the United States. 

For the foregoing reasons, the judgment of this Department award- 
ing the land in controversy to W^illis C. Wood is hereby revoked. The 
judgment of your office of March 23, 1893, is reversed ; the alleged 
relinquishment by Robert E. Wood filed in the case, is declared null 
and void; Willis C. Wood's entry No. 24,504 is hereby canceled ; Robert 
E. Wood's homestead entry No. 18,658 will be reinstated; and Mrs. 
Alice Wood, his widow, will be permitted to make final proof thereon. 



RAILROAD GRANT— L^VTERAL LIMITS— UXSURVEXED LANDS. 

CoLLETT r. Northern Pacific R. R. Co. 

The maps, tract books, aud official plats of survey, on file in the General Land Office, 
mast determine the location of railroad lines, and the distances therefrom of 
lands in dispnte between railroad companies and settlers. 

The fact that lands are uusnrveyed does not except them from the operation of a 
railroad grant on definite location. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
(I. H. L.) ruary 23, 1897, (J. L. M'C.) 

Your office by letter of November 19, 1895, transmitted to the Depart- 
ment the record in the case of Presley S. Collett r. Northern Pacific 
Baikoad Company, involving lot 9 of Sec. 9, T. 16 N., R. 8 W., Olympia 
land district, Washington. 

Counsel for said company have filed a motion to dismiss the appeal, 
for the reason that the same was not served upon F. M. Dudley, the 
general land agent of the company, and the person designated by the 
company as the attorney upon whom all notices should be served, but 
upon the local land agent of the company at Tacoma. 

In the essentially similar case of Boyle v. The Northern Pacific Kail- 
road Company (22 L. D., 184), it was held that service upon Thomas 
Cooper, the land agent of said company at Tacoma, was sufficient 
service. 

The motion to dismiss, m so far as it is based upon insufficiency of 
service, must therefore be denied, and the case considered upon its 
merits. 

The tract in controversy is opposite that portion of the road of said 
company extending from Portland, Oregon, to Tacoma, Washington, 
the grant for which was made by the joint resolution of May 31, 1870 
(16 Stat., 378). It is within the withdrawal on map of general route of 



DECISIONS RELATING TO THE PUBLIC LANDS. 181 

Angost 13, 1870, and on definite location of the road, September 13, 
1873, it fell within the primary limits of the grant. The records show 
no entry or filing covering the land at the said dates, or at the date of 
the grant, nor does CoUett allege settlement prior to May 15, 1886. 
The allegations of error are as follows, in substance: 

(1) In holding that said tract was within the primary limits of the 
grant to said company, for the reason that it is more than forty miles 
from the main line of its road. 

(2) In not holding that, the land being unsurveyed, the appellant 
had a prior right to the land under the act of May 14, 1880. 

Respecting the above allegations of error it may be said: 

(1) The maps, text-books, and official plats of survey on file in your 
office must be the guide — there can be no other or better guide — as to 
the locations of railroad lines, and the distances therefrom of lands in 
conflict between railroad companies and settlers. A careful examina- 
tion of such maps and plats of survey shows that the tract in contro- 
versy is considerably less than forty miles from the line of the Northern 
Pacific Eailroad, at its nearest point. 

(2) If the third section of the act of May 14, 1880 (21 Stat., 140), 
gives the appellant in this case a superior right to the land, it would 
render it necessary to award settlers upon all surveyed lands as well, 
the tracts upon which they have settled — thus at once deciding all con- 
flicting claims (where settlement has been made at any time) against 
the railroad company. For the language of said act is that it is 
intended for the relief of "any settler who has settled, or who shall 
hereafter settle, on any of the public lands of the United States, 
whether surveyed or unsurveyed." 

The question, however, has been repeatedly and uniformly decided 
by the Department adversely to the appellant's contention in this 
respect. Thus in the case of Olney v. The Hastings & Dakota Railway 
Company, it was held (10 L. D., 136, syllabus) : 

Definite location of the line of ro^ excludes the Buhsequent acquisition of set- 
tlement rights on unsurveyed lands subject to the grant. 

The decision of your office was correct, and is hereby affirmed. 



HOMESTEAD-SETTLEMENT RIGHT- WIDOWS-REMARRIAGE. 

Bellamy v. Cox. 

The settlement of a homesteader, 'who dies prior to the expiration of the time given 
for the assertion of his right, without having made application to enter, inures 
to the benefit of his widow ; and her subsequent remarriage will not defeat her 
claim as the successor to the right of her deceased husband. 

Secretary Francis to the Commissioner of the General Land Office, Feb, 
{L H. L.) ruary 23, 1897, (W. A. E.) 

On September 25, 1893, Johu H. Cox made hoDiestead entry for lots 
1 and 2 and the S. J of the NE. i of Sec. 3, T. 20 N„ E.-4 E., Perry, 
Oklahoma, laud district. 



182 DECISIONS RELATING TO THE PUBLIC LAND8. 

On November 15, 1893, Lou B. Crawford filed homestead application 
for the same land. With her application, she filed an affidavit alleg- 
ing, substantially, that on September 16, 1893, she was the wife of 
William C. Crawford, since deceased; that Crawford went ui>on the 
land in controversy on that date and made settlement thereon prior to 
the settlement of the entryman and prior to the time of his entry. 
Affiant further alleged that her husband died October 20, 1893, aod 
at the time of his settlement he was fully qualified to make entry of 
the land. 

A hearing was ordered, and the case came up for trial on March 12, 
1895. The plaintiff in the meantime had changed her name by marriage 
to Bellamy. 

On March 18, 1895, the local officers rendered their decision in favor 
of the plaintiff. From this action Cox appealed, and on October 11, 
1895, your office sustained the action of the register and receiver and 
held the entry of Cox for cancellation. 

The entryman's further appeal brings the matter before the Depart- 
ment. 

The testimony shows that William C. Crawford made the run on 
September 16, 1893, from the south side of the " Cherokee strip," and 
that he was the first person to reach the laud in controversy and stick 
a stake. His wife followed in a wagon, arriving on the land the same 
afternoon. About three o'clock in the afternoon Crawford left, but his 
wife remained on the tract. The following Tuesday he came back, 
remained until Wednesday, was then taken sick, and died the follow- 
ing month. Before he left the land he had a well dug, a foundation 
laid for a house, and about a quarter of an acre broken. Mrs. Craw- 
ford returned to the land in December and spent one day and night 
there. The following May she was on the tract two days and nights. 
Her improvements at the date of the hearing consisted of nine acres 
broken aud a box house, ten by twelve. 

Cox settled on the same tract on the afternoon of September 16, 1893, 
subsequent to Crawford's settlement. He cut four small poles for a 
foundation, then left the claim about sundown and did not return until 
September 23, when he plowed one furrow around the land. In October, 
1893, he built a small house and furnished it. The greater part of his 
time during the winter of 1893-4 was spent in old Oklahoma, but in 
the spring of 1894 he established his permanent residence on the land. 
At the date of the trial he had about one hundred and thirty acres 
enclosed with a wire fence and about fifty acres broken. 

It thus appears that Crawford was the first settler and consequently 
had the superior right to the land. He had three mouths from date of 
settlement in which to assert his rights by making entry or by initiat- 
ing a contest against an intervening entry. Before that time expired 
he died. 

In the case of Prestina B. Howard, 8 L. D., 286, it was held that 



DECISIONS RELATING TO THE PUBLIC LANDS. 183 

since the passage of the act of May 14, 1880, the right given the widow, 
heirs, or devisee of a deceased homesteader by section 2291 of the 
Revised Statutes to fulfill the law, make proof, aud receive patent, 
inures to them as well when the homestead right rests on settlement 
under said act as when founded on formal application to enter. See 
also the case of Tobias Beckner, G L. D., 134. 

Mrs. Crawford, having thus succeeded to the rights of her deceased 
husband, immediately took steps to protect those rights. She filed 
her formal application to enter and continued the cultivation and 
improvement of the tract. It was not necessary for her to reside on 
the land. Tauer r. The Heirs of Walter A. Mann, 4 L. D., 433. 

The principal question we have to consider, then, is what effect her 
remarriage had on her rights. 

It was held in the case of Prestina B. Howard, above cited, that 
while a married woman is not authorized to initiate or make a home- 
stead entry in her own right, she may, as the heir of a deceased 
homestead claimant, make application, submit proof, and receive patent. 

The plaintiff here claims this land, not in her own right, but by vir- 
tue of her succession to the rights of her deceased husband. She did 
not, by her remarriage, forfeit those rights. 

Your office decision is accordingly affirmed, Cox's entry will be can- 
celed, and the plaintiff will be allowed to perfect her homestead appli- 
cation. 



OIL LAXI>S.. PT^VCER ENTRY. 

Circular. 

Department of the Interior, 

General Land Office, 
Washington, D, C, February 25^ 1897. 
Registers and Receivers, 

U, 8. Land Offices. 

Sirs: Your attention is directed to the act of Congress, approved on 
February 11, 1897, as follows: 

[PuBUC— No. 57. J 

AN ACT to authorize the entry and patenting of lands containing petroleum and other mineral oils 

under the placer mining Iaw.s of the United States. 

Be it encLcted hy the Senate and House of Repreaentalivea of the United States of America 
in Congress assembled, That any person antborized to enter lands nnder the mining 
laws of the United States may enter aud obtain patent to lands containing petro- 
leam or other mineral oils, and chiefly valuable therefor, under the provisions of the 
laws relating to placer mineral claims : Provided, That lands containing such petro- 
leum or other mineral oils which have heretofore been filed upon, claimed, or im- 
proved as mineral, but not yet patented, may be held and patented under the 
provisions of this act the same as if such filing, claim or improvement were subse- 
qnent to the date of the paesage hereof. 



184 DECISIONS RELATING TO THE PUBLIC LANDS. 

It is to be observed that though the provisions of the placer mineral 
laud laws are by said act extended so as to allow the location and eutry 
thereunder of public lands chiefly valuable for petroleum or other min- 
eral oils, yet the substances named are not expressly stated to be 
mineral, in view of which it would appear that the prior assertion of a 
legal adverse claim to laud valuable for petroleum or other mineral oils 
would preclude the acquisition of any rights thereto under the pro- 
visions of the mineral land laws. 

Claims to lands of the character mentioned, heretofore initiated 
under the mineral land laws are by said act expressly confirmed, bat 
this confirmation must, of course, be construed as applying only to 
cases where, prior to February 11, 1897, no valid adverse claim to lands 
involved had been acquired under other than the mineral land laws. 

In proceeding under this law, you will act in accordance with the 

views herein set forth. 

Very respectfully, S. W. Lamokbux, 

Commissioner, 
Approved : 

David R. Francis, 

Secretary, 



GREER COUXTY, OKLAHOMA-ACT OF JANUARY 18, 1897. 

Instructions. 

Department of the Interior, 

General Land Office, 

Washington, D, C, February 25, 1897, 
Register and Receiver, 

Mangum, Oklahoma Territory. 

Gentlemen: Tour attention is called to the provisions of the act of 
Congress, entitled "An Act To provide for the entry of lands in Greer 
County, Oklahoma, to give preference rights to settlers, and for other 
purposes", approved January 18, 1897 (Public No. 15), a copy of which 
is hereto attached. 

Sec. 1 provides that every person quali&ed under the homestead 
laws of the United States, who on March 16, 1896, was a bona fide 
occupant of land within the territory established as Greer county, 
Oklahoma, shall be entitled to continue his occupation of such land 
with improvements thereon, not exceeding one hundred and sixty 
acres, and shall be allowed six mouths preference right from the pas- 
sage of this act within which to initiate his claim thereto. 

A party desiring to make a homestead entry under this section, 
must present his formal application with the usual affidavits accom- 
panied by the fee and commissions required in an entry of minimum 
land, and a special affidavit showing that he was on March 16, 1896, a 



DECISIONS RELATING TO THE PUBLIC LANDS. 185 

bona fide occupant of the land he applies to enter. Title may be i)er- 
fected at the expiration of five years from date of entry or within two 
years thereafter, under the provisions of the homestead law, or such 
person may receive credit for all time during which he or those under 
whom "he claims have continuously occupied the land prior to March 
16, 1896. Every such person shall also have the right for six months 
prior to all other persons to purchase at one dollar an acre, in five equal 
annual payments, any additional land of which he was in actual posses- 
sion on March 16, 1896, not exceeding one hundred and sixty acres, 
which prior to said date had been cultivated, purchased or improved 
by him. 

A party wishing to avail himself of the above privileges, must present 
his application to purchase (form 4-001) together with the prescribed 
amount of purchase money for the land desired, which need not be con- 
tigaous to his homestead entry, together with evidence showing that he 
had prior to March 16, 1896, cultivated, purchased, or improved the 
same; evidence of cultivation or improvement must consist of the aflS- 
davit of the applicant corroborated by the testimony of two or more 
witnesses: or in case the claim is based on purchase, an abstract of 
title, or other documentary evidence, showing the transfers under which 
the party claims as purchaser. No certificate can be issued until the 
entire amount of the purchase money shall have been paid : but the 
receiver will issue his receipt (form 4-140, a) properly modified, for 
the amount paid and deliver a duplicate thereof to the purchaser. 

Wlien any person entitled to a homestead or additional land as above 
provided, is the head of a family, and though still living, shall not take 
snch homestead or additional land, within six months from the passage 
of this act, any member of such family over the age of twenty-one years, 
other than husband or wife, shall succeed to the right to take such 
homestead or additional land for three months longer, and any such mem- 
ber of the family shall also have the right to take, as before provided, 
any excess of additional land actually cultivated or improved prior to 
March 16, 1896, above the amount to which such head of the family is 
entitled, not to exceed 160 acres to any one person thus taking as a 
member of such family. 

Application for homestead or additional entry under this provision, 
must be made in the same manner as heretofore prescribed. 

In case of the death of any settler who actually established residence 
and made improvement prior to March 16, 1896, the entry may be made 
by the party in interest, according to section 2291 U. S. R. S. 

Section 2 provides for the disposal of all land in said county not 
occupied, cultivated or improved, as provided in section 1, or not 
included within the limits of any townsite or reserve, to actual settlers 
only, under the provisions of the homestead law. 

Any person applying to make entry under this section prior to the 
expiration of the preference right granted by section 1 will be allowed to 



186 DECISIONS RELATING TO THE PUBLIC LANDS. 

make entry, subject to any valid adverse right under said section 1, on 
filing bis affidavit that the laud applied for is not occupied, cultivated 
or improved by any other person. 

Section 3 provides that the inhabitants of any town located in said 
county shall be entitled to enter the same as a townsite under the pro- 
visions of section 2387, 2388, and 2389 of the Revised Statutes. 
Instructions relative to entry of townsites under said sections of the 
Revised Statutes are found in circular of this office dated July 9, 1886 
(5 L. D. 265). 

Under the proviso to this section of the law, the corporate authori- 
ties of the town, or the judge of the county court, who shall ent^r the 
townsite, shall accord to all persons a preference right to the town lots 
upon which they have made or own improvements. 

By section 4, sections numbered sixteen and thirty-six are reserved 
for school purposes as provided in laws relating to Oklahoma, and sec- 
tions thirteen and thirty-three in each township are reserved for such 
purpose as the legislature of the future State of Oklahoma may pre- 
scribe. That whenever any of the lands reserved for school or other 
purposes under this act, or under the laws of Congress relating to 
Oklahoma, shall be found to have been occupied by actual settlers or 
for town site purposes or homesteads prior to March 16, 1896, an equal 
quantity of indemnity lands may be selected as provided by law. 

Under section 5, the right of entry to land within said county, which 
on March 16, 1896, was occupied for church, cemetery, school, or'other 
charitable or voluntary purposes, not for profit, is given to the proper 
authorities in charge thereof. 

In each case the maximum area to be so entered is two acres. Sec- 
tions numbered 16 and 36, within each township, within said county, 
are reserved by section 4 of this law for school purposes, and are 
exempted from the operations of this section. 

it will not be practicable for you to locate land applied for under this 
section with the certainty required for an entry. You will, then, upon 
the presentment of such an application, forward the same to this office 
for appropriate action. 

Section 7 provides that all laws authorizing commutations of home- 
steads in Oklahoma shall apply to Greer county. This makes applica- 
ble section 22 of the act of May 2, 1890 (26 Stat., 81), where the com- 
mutation of ^ homestead entry for townsite purposes is sought. 

Instructions relative to procedure under said section 22 of the said 
act are found in circular of this office, dated November 30, 1S94 (19 
L. D., 348). 

Commutation of homestead entries under section 7 of this act, except 
for townsite purposes, will be governed by the provisions of sectioa 21, 
act of May 2, 1890 (26 Stat., 81), which requires the payment of $1.25 
per acre and proof of compliance with the homestead law for not less 
than twelve months from date of locating upon said homestead. 

It is exi)ected that tlie above instructions will be found sufficient for 



DECISIONS RELATING TO THE PUBLIC LANDS. 187 

your guidance, but should any case arise which is not covered thereby, 

you will transmit the papers in such case to this office for instructions. 

Very respectfully, 

E. F. Best, 

Assistant Commissioner, 
Approved : 

David R. Francis, 

Secretary. 



[PirBLic — No, 15.] 

AN ACT t«> provide for the entry of lands in Greer County, Oklahoma, to give pref- 
erence rights to settlers, and for other purposes. 

Be it erutcted by the Senate and House of Representatives of the United 
States of Ame^Hca in Congress assembled^ That every person qualified 
nnder the homestead laws of the United States, who, on March six- 
teenth, eighteen hundred and ninety-six, was a boua fide occupant 
of land within the territory established as Greer county, Oklahoma, 
sliall be entitled to continue his occupation of such land with improve- 
ments thereon, not exceeding one hundred and sixty acres, and shall 
be allowed six months preference right from the passage of this act 
within which to initiate his claim thereto, and shall be entitled to i>er- 
fect title thereto under the provisions of the homestead law, upon pay- 
ment of land office fees only, at the expiration of five years from the 
date of entry, except that such person shall receive credit for all time 
during which he or those under whom he claims shall have continuously 
occupied the same prior to March sixteenth, eighteen hundred and 
ninety-six. Every such person shall also have the right, for six months 
prior to all other persons, to purchase at one dollar an acre, in five 
equal annual payments, any additional land of which he was in actual 
possession on March sixteenth, eighteen hundred and ninety-six, not 
exceeding one hundred and sixty acres, which, prior to said date, shall 
have been cultivated, purchased, or improved by him. When any per- 
son entitled to a homestead or additional land, as above provided, is 
the head of a family, and though still living, shall not take such home- 
stead or additional land, within six months from the passage of this 
act, any member of such family over the age of twenty-one years, 
other than husband or wife, shall succeed to the right to take such 
homestead or additional land for three months longer, and any such 
member of the family shall also have the right to take, as before pro- 
vided, any excess of additional land actually cultivated or improved 
prior to March sixteenth, eighteen hundred and ninety-six above the 
amount to which such head of the family is entitled, not to exceed one 
hundred and sixty acres to any one person thus taking as a member of 
such family. 

In case of the death of any settler who actually established residence 
and made improvement on land in said Greer county prior to March 



188 DECISIONS RELATING TO THE PUBLIC LANDS. 

sixteenth, eighteen hundred and ninety-six, the entry shall be treated 
as having accrued at the time the residence was established, and sec- 
tions twenty-two hundred and ninety-one and twenty-two hundred and 
ninety-two of the Revised Statutes shall be applicable thereto. 

Any person entitled to such homestead or additional land shall have 
the right prior to January first, eighteen hundred and ninety-seven, 
from the passage of this act to remove all crops and improvements he 
may have on land not taken by him. 

Sec. 2. That all land in said county not occupied, cultivated, or 
improved, as provided in the first section hereof, or not included within 
the limits of any town site or reserve, shall be subject to entry to actual 
settlers only, under the provisions of the homestead law. 

Sec. 3. That the inhabitants of any town located in said county shall 
be entitled to enter the same as a town site under the provisions of 
sections twenty-three hundred and eighty-seven, twenty-three hundred 
and eighty-eight, and twenty-three hundred and eighty-nine of the 
Revised Statutes of the United States: Provided, That all persons who 
have made or own improvements on any town lots in said county made 
prior to March sixteenth, eighteen hundred and ninety-six, shall have 
the preference right to enter said lots under the provisions of this act 
and of the general town-site laws. 

Sec. 4. Sections numbered sixteen and thirty-six are reserved for 
school purposes as provided in laws relating to Oklahoma, and sections 
thirteen and thirty-tliree in each township are reserved for such pur- 
pose as the legislature of the future State of Oklahoma may prescribe. 
That whenever any of the lands reserved for school or other purposes 
under this act, or under the laws of Congress relating to Oklahoma, 
shall be found to have been occupied by actual settlers or for town-site 
purposes or homesteads prior to March sixteenth, eighteen hundred 
and ninety-six, an equal quantity of indemnity lands may be selected 
as provided by law. 

Sec. 5. That all lands which on March sixteenth, eighteen hundred 
and ninety-six, are occupied for church, cemetery, school, or other chari- 
table or voluntary- purposes, not for profit, not exceeding two acres in 
each case, shall be patented to the proper authorities in charge thereof, 
under such rules and regulations as the Secretary of the Interior shall 
establish, upon payment of the government price therefor, excepting 
for school purposes. 

Sec. 6. That there shall be a land office established at Masgum, in 
said county, upon the passage of this act. 

Sec. 7. That tlie provisions of this act shall apply only to Greer 
county, Oklahoma, and that jill laws inconsistent with the provisions 
of this act, applying to said territory in said county, are hereby 
repealed; and all laws authorizing commutations of homesteads in 
Oklahoma shall apply to Greer county. 

Sec. 8. That this act take effect from its passage and approval. 

Approved, January 18, 1897. 



DECISIONS RELATING TO THE PUBLIC LANDS. 189 

HOM£ST£^VI> CONTEST-SETTL.EMENT RIGHT-BURDEN OF PROOF. 

Irwin p. Newsom (On Keview). 

No right can be secured under the conteBt of one attacking an entry on the ground 
of prior settlement, m the absence of some special equity shown, if the charge 
as made is not established by a preponderance of the evidence. 

Secretary Francis to the Commissioner of the General Land Office, Feb- 
(I. H. L.) ruary 27y 1897. (C. W. P.) 

On July 18, 1896, you transmitted the motions of John W. Irwin and 
Charles H. Newsom, for review of the decision of the Department of 
April 28, 1896, in the case of said John W. Irwin against the said 
Charles H. Newsom (22 L. D., 577). Upon examination of said motions, 
the same, under date of September 5, 1896, were entertained by the 
Department for argument, as provided for by rule 114 of practice. 

The land involved is the NW. J of Sec. 34, T. 23 N., R. 2 W., Perry 
land district, Oklahoma. 

On September 16, 1893, the day on which the land was open to set- 
tlement, these parties made settlement on said land. 

On September 25, 1893, Newsom made homestead entry of said laud. 

On October 25, 1893, Irwin filed affidavit of contest, alleging prior 
settlement. 

A bearing was had; the local officers recommended the cancellation 
of Newsom's entry, and that Irwin be allowed to make homestead entry 
of the land. Newsom appealed. 

Your office rendered a decision to the effect, that 3''0u were unable to 
determine who was the prior settler, and thought the case should be 
settled between the parties, and that each of them should make entry 
of such legal subdivisions of the land as they may agree upon, and 
your office reversed the judgment of the local officers, and ordered that, 
in case of the failure of the parties to compromise, as suggested, within 
sixty days, Newsom's entry be canceled as to the E. J of the NW, ^ of 
the section, and the right of entry for the E. J be awarded to Irwin, 
The Department, on appeal, said : 

1 agree with your office that tbe evidence is so conflictlDg that it is impossible to 
decide which of the two claimants was the prior settler ; hut I can not agree with 
that part of your office decision which directs that, in case of failure of the parties 
to agree to a compromise, the land be divided between them. I think in such a case 
as this, if the parties can not agree, the land should be sold to the highest bidder 
of the two. And your office decision was modified accordingly. 

In the case of Sumner v. Eoberts, 23 L. D., 201, it was held by the 
Department that 

in cases where entries have been made and contests thereafter instituted upon the 
ground of prior settlement, unless the contestant shall successfully carry the burden 
of showing by proof that his settlement antedates the entry and the settlement of 
the entryman, the rule that the entry will stand will be adhered to. The cases in 
which this rule would seem to have been disregarded will no longer be regarded 



190 DECISIONS RELA.TING TO THE PUBLIC LANDS. 

as precedents to be followed. The fact of prior settlement is lawful authority for 
the cancellation of nn entry of record, but evidence which leaves the qaestion in 
doubt as to which settled flrst, tbe entrymau or the contestant, and is without some 
degree of preponderance in favor of the contestant, will leave the entry intact. 
Even if the evidence should show that settlement was made simultaneously by a 
contestant and an entryman, this will not authorize the cancellation of an entry 
properly of record as was held in the recent case of Perry ei al. r. Haskins (23 L. D., 50). 

In the more recent case of Behar v. Sweet (24 L. D., 158), it is said: 

While the ruling that a settler claiming prior settlement over one having an entry 
of record must establish his claim by a preponderance of evidence, will be adhered 
to in most cases, the Department will, when justice and equity require it, and great 
hardship would result were the rule applied, depart so far from the rule as to reach 
an equitable decision in the case. 

As there does not appear to be any particular equity in favor of Irwin, 
both parties having shown good faith in their settlement, the rule must 
be applied in the present case. Your office and the Department have 
impliedly found that Irwin failed to show by a preponderance of evi- 
dence that he was the prior settler, and 1 see no reason to reverse that 
finding. 

In his brief, the attorney for Irwin calls the attention of the Depart- 
ment to the fact tliat two of Newsom's witnesses, Shaw and Barnhisel, 
were impeached upon the trial of this contest, and that no recognition 
of this fact was made by the decision of the Commissioner, and says: 

This fact, no doubt, wan the turning point in the minds of the register and receiver 
in deoiding for plaintiff and against the defendant. The testimony of these wit- 
nesses, taken in connection with the testimony of the plaintiff, Irwin, wherein he 
swears that he saw the defendant come on to this tract of land from the west aide 
after he, the plaintiff, was already located thereon, should certainly leave no donbt 
in the mind of the reviewing court that plaintiff* was first to reach the land, and that 
the decision of the local office should be upheld and the preference right of entry 
awarded to the plaintiff. 

Two witnesses were called t-o impeach the credit of the witness 
Shaw — one Eaybourn and one Holeman. Raybourn testified that lie 
knew nothing of Shaw's reputation for truth and veracity. Holeman 
testified that it was bad. But, on the other hand, two witnesses for 
the defendant testified that it was good. The witness Barnhisers 
credit for veracity was impeached by one witness, the said Raybourn, 
and sustained by the testimony of the defendant and one witness. 

It was by the rejection of the testimony of Shaw and Barnhisel that 
the local officers arrived at the conclusion that Irwin had proved his 
case by a preponderance of the evideilce. But I can not think that 
much credit should be given to the impeaching witnesses. 

The decision of the Department of April 28, 1896, is, therefore, 
revoked and Irwin's contest dismissed. 



DECISIONS RELATING TO THE PUBLIC LANDS. 191 

MINING CLAIM— NOTICE-PARAGRAim 80, MINING REGULATIONS. 
GOWDY ET AL. t?. KlSMET GOLD MINING Co. 

The notice of an application for a mineral patent should, in Htaiing the names of 
adjacent claims, include nnsurveyed a.s well as surveyed claims. 

Failure to include in the posted and published notice of a mineral application the 
names of the ueare9t/Or adjacent claims, in strict accordance with paragraph 
29, of mining regulations, will not render new notice necessary, where the notice 
as given is substantially in conformity with the practice heretofore observed 
under said paragraph. 

Paragraph 29, of mining regulatitms, amended, and directions given for due pro- 
mulgation thereof. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
{I. n, L.) ruary 27^ 1897. (P. J. C.) 

A petition for re-review of departmental decision of May 23, 1896 
(22 L. D., 624), and for the exercise of the supervisory powers of the 
Secretary of the Interior, has been filed in this Department by the Kis- 
met Gold Mining Company. On examination thereof the same was 
entertained, and under direction of the Department a copy thereof 
served on W. H. Gowdy et aL The matter now comes up regularly for 
consideration. 

So far as material to the question now involved, it appears that dur- 
ing the period of publication of notice of application for patent for 
the Kismet Mining claim, survey No. 8868, Pueblo, Colorado, land dis- 
trict-, the owners of the Chicago Girl Mining claim, which it is alleged 
conflicts with the Kismet, did not file a protest and adverse as required 
by section 2325 of the Revised Statutes against the Kismet. Subse- 
quently, Gowdy et al, did file a protest, in which it was alleged that 
the notice of application was not conspiciously posted on the Kismet, 
and that the published notice did not contain the names of adjoining 
claims. 

When the matter reached the Department, three questions raised by 
the appeal were decided. First: That Gowdy et alj having failed to 
file their protest and adverse as provided by statute, the Department 
could afibrd them no relief if there had been a substantial compliance 
with the law in the matter of giving notice; that the question as to 
whether proper notice had been given was one in which only the gov- 
ernment and the applicant were interested. Second: That the notice 
posted on the claim was conspicuously posted in contemplation of the 
regulations, and, Third: That the notices posted and x)ublished did not 
contain the names of adjoining claims, or state where the record of the 
claim might be found. The order was, therefore, that the entry should 
be suspended, and new publication be made in conformity with the 
rules. 

A motion for review of this decision was denied September 11, 189 J 
(23 L. D., 319). 



192 DECISIONS RELATING TO THE PUBLIC LANDS. 

It is not deemeil necessary to give in full the errors assigned. 

The Department has no intention of receding from the position taken 
in this case originaUy as to the status of the protestants. in the case 
presented at that time it was not charged or shown that they did not 
have notice of the application for patent, and the ex parte affidavits 
now presented, alleging that they did not have notice, come too late 
for consideration, under the doctrine announced in Peacock r. Shearer's 
Heirs, 20 L. D., 213, and Tennessee Coal, Iron and Railroad Company 
et aZ., 23 id., 28. 

It is not conceived how it can be seriously conteuded that the ruling 
in the case at bar is in violation of the regulations. It is not under- 
stood that counsel on either side, either in their briefs or in the oral 
argument, insist on that position, but the complaint of the i>etitioner is 
that the construction placed on the regulations by the Department is 
contrary to the practice that has prevailed in your office, and that the 
rigid enforcement thereof at this time is a serious hardship on the peti- 
tioner, as well as the multitude of others who have followed the form of 
notice published and posted in this case, and if adhered to will cause 
doubt and uncertainty as to titles secured, as well as cause great 
expense in re-advertising. And, it is insisted, that if an unbending 
rule is to be announced and adhered to, those who have proceeded in 
this manner, and have made a substantial compliance with the regula- 
tions, should not be summarily required to republish and repost, and 
thus give those who have been inattentive to their own interests an 
opportunity to harass the applicants with adverse proceedings. 

An informal inquiry at the mineral division in your office discloses 
the fact that a large proportion of the notices of the character under 
discussion are not strictly in conformity with the regulations, and some 
of the features might on strict construction be subject to the same 
criticism as the one at bar. It has been considered by your office that 
these notices are a substantial comphance with the regulations. 

In view of this, your office, on the promulgation of the decision in 
this case, deemed it advisable to issue a circular to the local officers, 
in which was quoted paragraphs 29, 34, and 35 of the mining circular, 
and then following this : 

By departmental decision of May 23, 1896, in the case of Gowdy v. Kisraet Gold 
Mining Company, it was held that a strict compliance with said paragraph 35 wili 
be insisted upon, and in that case republication was required by reason of the fact 
that the published notice failed to contain a reference to the names of adjoining or 
nearest claims. 

In view of the fact that most published notices fail to comply in some particular 
with the above-quoted regulations, your special att<entiou is called to said decision, 
and you are enjoined to comply with said regulations in the preparation of notices 
for publication. 

After mature deliberation on this subject, I am convinced that there 
is much force in the proposition that if the rule announced by the 
Department in this case, if enforced, would effect a material change in 



DECISIONS RELATING TO THE PUBLIC LANDS. 193 

the practice theretofore prevailing in your office, which, by reason of its 
loDg standing, may be regarded as having become a rale of property, 
and that the summary enforcement of such rule as to pending applica- 
tions, in which notice has been given under the former practice, is not 
only calculated to cause much confusion, but great expense, both of 
which should be avoided. 

It is conceded on all hands that there should be a uniform practice, 
and that the fullest and most accurate notice should be given, so that 
the parties interested adversely may be able to fix the locus of the 
claim, and thereby determine whether or not there is any conflict. The 
langaage used in this case, and cited with approval in Parsons v. Ellis 
(23 L. D., 504), as to the necessity of this notice, meets my views. 

It is not improbable that some confusion may have arisen by reason 
of the somewhat vague and indefinite wording of paragraph 20, and 
tbe different constructions that might be placed thereon. It will be 
observed that the language in regard to adjoining claims is: 

The name or names of adjoining claimants on same or other lodes, or, if none adjoin, 
the names of the nearest claims, ete. 

Before commenting on this language, it may be well to state that all 
official surveys of mining claims are made by a deputy mineral sur- 
veyor, who is regularly appointed by the surveyor- general of the dis- 
trict. He is, therefore, an officer of the laud department, and as such 
IS strictly under the highest obligations to perform his duties in accord- 
ance with instructions. Being such officer, his reports and acts must 
be accepted as prima facie true. It is upon his report, made from 
actual observation in the field, that the data are obtained from which 
the register must prepare the publication notice. The surveyor, there- 
fore, must act impartially in making his report. His connection with 
the survey is only that of an officer of the Department, and any further 
acts, especially in connection with securing a patent, are in direct vio- 
lation of his duties and his instructions. I may add that this discus- 
5>ion is suggested by reason of the fact that it is charged that the 
deputy surveyor exceeded his duties in this matter by preparing "the 
notices of application for patent.'' 

Kecurring now to the language quoted from paragraph 29, the diffi- 
culty of rigidly enforcing this requirement in all its detail is clearly 
apparent. To give the names of "adjoining claimants" would require 
a search of the records to . ascertain who were the claimants of any 
^uvh claim, which in itself entails a task that is burdensome and may 
be expensive, especially where there have been numerous transfers of 
fractional interests. And it is not clear how any better results so far 
as notice is concerned would be obtained by strictly construing this. 
It would seem as if simply giving the name of the claim would answer 
every purpose. The claimants would then have all the notice that can 
reasonably be required. It is a fact, as I am informed by your office, 
10671— VOL 24 13 



194 DECISIONS RELATING TO THE PUBLIC LANB8. 

that this requirement is very rarely ftiMlled, and under the practice 
that has obtained has practically fallen into disuse. 

The practice has been simply to name adjoining claims, and in this 
some confusion has arisen. The almost universal practice is that only 
claims of which official surveys have been made are named. It is true 
that these are the only claims of which the government, in any of its 
departments, has any official knowledge, but the tBUSt may be, and not 
infrequently is, that claims of the greatest notoriety in the mining dis- 
trict may never have had an official survey, and may be near, or ^^tlie 
nearest claim," to that applied for. It seems to me that it is the duty 
of the deputy surveyor in all cases where it is practicable to do so, to 
give the names of such claims. As said in this case originally, it is 
l>rimarily the duty ot the applicant himself to give such informatiof] as 
he is x>ossessed of in regard to adjoining, or conflicting daims, as he is 
presumed to know more about these matters than a strange. 

It is not improbable that my predecessor, iu deciding this case as he 
did, and holding that a strict construction should be given to this para- 
graph, especially in regard to adjoining claims, had in view the necessity 
of naming all such claims and was not cognizant of the fact that the 
practice had almost uniformly been to inclade in the notices only such 
claims as had been officially surveyed. 

It seems to me that paragra])h 29 should be amended so as to remove 
any doubt of its meaning, and make as clear and adequate provision 
for future guidance as is possible. It will be readily understood that 
it is practically impossible to make any regulation that will cover all 
possible cases that may be presented. The most tliat can be done is to 
formulate such rule as will be best adapted to meet all contingencies 
that may arise, and leave the question as to whether there has been a 
compliance therewith to be determined as the emergency may be pre- 
sented. The government has the mineral lands for sale to those who 
are entitled to the same by reason of compliance with the law. The 
Secretary of the Interior is clothed with power to make such rules and 
regulations in regard to the disposal thereof as are not inconsistent 
with law. The purpose of giving notice of the application for patent 
for mining claims is to notify all who may have conflicting locations 
that they may protect their interests as provide<l by law. With this 
end in view, and to make more definite what the practice should be in 
the future in such cases, I have had x}re]>ared the following as a substi- 
tute for the present paragraph 29 : 

29. The claimant is then required to post a copy of the plat of such sarrey in a 
conspicuous place upon the claim, together with notice of his intentiou to apply for 
a patent therefor, which notice will give the date of posting, the name of the olaim- 
ant, the name of the claim; the mining district and county; whether or not the loca- 
tion is of record, and, if so, where the record may be found, giving the book and 
page thereof; the number of feet claimed along the vein and tlie presumed direction 
thereof; the number of feet claimed on the lode in each direction from the point of 
discovery, or other well-deflned place on the claim; the names of all adjoining and 
oonflictiug claims, or, if none exist, the notice should so state. 



DECISIONS KELATING TO THE PUBLIC LANDS. 195 

Year office is directed to immediately send to the local officers a copy 
of this rule, with ins tractions that the same will be in full force and 
effect on and after the first day of June, 1897, and all publications made 
thereafter must be in conformity with this. All publications made or 
started prior to that date will be treated under the rule as it was inter- 
preted prior to the original decision in this case. 

I am constrained to believe that in the case at bar there was a sub- 
stantial compliance by the applicants with the rules as then adminis- 
tered and construed, and that the decision should be modified to this 
extent. The order requiring republication and suspending the entry 

during that period is hereby revoked. 
It is so ordered. 



HAILROAI> GRANT-IN1>KMNTTY SELECmON-C05rFLlCTING LIMITS. 

Geitnewald et al. V. Northern Pacific E. R. Go. et al. and 
Northern Pacific R. R. Oo. r. St. Paul, Minneapolis and 
Manitoba Ry. Co. 

An indemDity selection unaocompauied by a speciticatiou of loss is no bar to tbe 
attachment of other rights. 

An uncanceled pre-emption filing of record, at the date a railroad grant becomes 
effect Ive, excepts the land covered thereby from the operation of the (rrant. 

The establishment of indemnity limits on the definite location of the Northern 
Pacific, and action taken thereon, did not amount to a finding on the part of 
tbe Department that all the lands in said limits would be required to satisfy the 
grant to said company. 

At the time of the filing and acceptance of the map of definite location of tbe St. 
Vincent extension of tbe Manitoba road, there was no reservation of lands for 
the benefit of tbe Northern Pacific outside tbe withdrawal on general route, 
and the primary limits adjusted to definite location, that would defeat the 
grant to the Manitoba company. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
(I. H. L.) rnary 27^ 1897, (F. W. 0.) 

This case is somewhat complicated, due to tbe mauy claimants to tbe 
tracts involved, Aagast Grunewald, Peder J. Skaar and tbe Northern 
Pacific Railroad Company having each appealed from your office 
decision of February 2, 1895, making disi)osition of tbe lands involved 
as hereinafter stated. 

The case seems to have arisen upon an application tendered by 
Grunewald on December 6, 1887, to make homestead entry covering 
the S. ^ of the N W. ^, the N W. J of tbe S W. J and lot 4, Sec. 3, T. 134 
N., R. 43 W., St. Cloud land district, Minnesota. 

This land is witbin tbei)rimary limits of tbe grant for tbe St. Vincent 
Extension of the St. Paul, Minneapolis and Manitoba Railway, made 
by act of March 3, 1871, the rights under wbicb attacbed upon tbe 
acceptance of the map sbowing tbe line of definite location of tbe com- 
pany's route on December 19, 1871. It is also within tbe tbirty mile 



196 DECISIONS RELATING TO THE PUBLIC LANDS. 

or first indemnity belt of the grant to the Northern Pacific Kailroad, 
as adjusted to the map of definite location of said road filed November 
7, 1871. It was not within the limits withdrawn upon the map showing 
the line of general route of the said Northern Pacific Railroad. 

The NW, J of the SW. J of said section 3 had, prior to the tender 
of Grunewald's application, been applied for by Knudt Johnson, aud 
Grunewald's application was rejected on account of the pending appli- 
cation by Johnson; from which he duly appealed to your oflSce. 

The case arising upon Johnson's application was duly prosecuted to 
this Department, final decision being rendered in Johnson's favor April 
10,1891. 

Following this decision it appears that Grunewakl tendered a second 
application, covering only the land in conflict with Johnson's entry. 
namely, the said NW. J of the SW. J; but on July 13, 1891, he waived 
any claim as to the said forty, electing to stand upon his application 
presented in 1887 as to the said S. J of the NW. J an<l lot 4 of Sec. 3. 

On April 5, 1893, one Peder J. Skaar tendered his homestead appli- 
cation for the SW. J of the NW. J of said Sec. 3. He did not alle^^e 
prior settlement, but the local officers, having misconstrued Gmnewald's 
action and supposing that he had withdrawn all claim under his appli- 
cation, instead of only eliminating the tract before referred to, held the 
application by Skaar for allowance and notified both railroad oompa< 
nies of such action; from which they duly appealed. 

As to the claims made by the companies to the tracts involved, the 
record discloses that on December 2, 1873, the St. Paul, Minneapolis 
aud Manitoba Railway Company listed the SE. J of the NW. ^ and lot 
4 of said section 3, and on July 31, 1884, listed the S W. J of the NW. J of 
said section. The last mentioned tra(*.t was selected by the Northeru 
Pacific Kailroad Company on ()ctober 29, 188.*^, without specification ol 
bases, but the same was applied in the amendatory list filed April 26, 
1892. The local oflBcers rejected the attempted selection by the North 
ern Pacific Railroad Company for conflict with the prior selection by 
the St. Paul, Minneapolis and Manitoba Railway Company ; from which 
said company duly appealed. 

The record further shows that the said SW. J of the NW. J, involved 
in the claim made by both railroad companies and by both Skaar and 
Grunewald, was embraced in the pre emption declaratory statement of 
F. J. Grunewald filed June 19, 1871, alleging settlement on the 7th of 
that month. This filing was never completed but was still of record, 
uncanceled, both at the date of the attachment of rights under the 
Manitoba grant and at the date of withdrawal aud selection on account 
of the Northern Pacific grant. 

The conflicting claims of all parties were considered in your oflice 
decision of February 2, 1895, before referred to, wherein the homestead 
applications of both Grunewald and Skaar were rejected as to the said 
SW*. J of the NW. J ; the same being held to have been excepted from 



DECISIONS RELATING TO THE PUBLIC LANDS. 197 

the grant for the Manitoba company, and was awarded to the Northern 
Pacific llailroad Company under its selection, before referred to, of 
October 29, 1883. As before stated, this selection was not accom- 
panied by a designation of losses as a basis therefor, and not being 
protected by the order of May 28, 1883, the same was no bar to the 
attachment of other rights. (J^orthern Pacific E. R. Co. t\ Miller, 12 
L. D., 428.) 

The action of your office in awarding said tract to the said Northern 
Pacific Railroad Company is therefore reversed. This tract was, how- 
ever, excepted from the grant to the St. Vincent Plxtension by the filing 
before referred to, and to that extent the holding of your office decision 
as against the grant for the Manitoba Company is affirmed. 

Between Grunewald and Skaar, Grunewald was the prior claimant 
under his application presented December 6, 1887, which I find he has 
not waived, and said tract is awarded to him, the conflicting applica- 
tion of Skaar being rejected. 

The tract remaining for consideration is the SE. J of the NW. J and 
lot 4 of said section 3. 

As before stated, this tract is within the primary limits of the grant 
for the Manitoba Railway Company, the rights under which attached 
December 19, 1871, and is also within the indemnity limits of the grant 
for the ^^"orthern Pacific Railroad Company, on acciount of which appli- 
<atiou was made to select this land April 27, 1892: the same being 
rejected because of conflict with the Manitoba grant. 

Your office decision sustains the rejection of the attempted selection 
by the Northern Pacific Railroad Company upon the ground that the 
lands were withdrawn, on account of the Manitoba grant, at the time 
of the presentation of the list of selections by the Northern Pacific 
Railroad Company. 

It is urged by the company that the rights of these parties within 
this conflict are determined by the decision of the United States Su- 
preme Court in the case between said companies reported in 139 U. S., 
page 1. It is admitted that the Department has ruled otherwise.in its 
decision of December 4, 1895, between said companies, reported in 21 
L. D., 462, but it is urged that this holding is clearly in conflict with 
the decision of the court. 

Just what was intended to be held by the court in the case referred 
to is a matter of some doubt. 

The lands involved in said case were all within the limits of the with- 
drawal upon the map of general route of the Northern Pacific Railroad 
Company, which withdrawal became effective before the attachment of 
rights under the Manitoba grant. 

As stated by the court (page 17) — 

The withdrawal made by the Secretary of the Interior of lands within the forty- 
mile limit, on the 13th of Angnst, 1870, preHerved the lands for the benefit of the 
Northern Pacific Bailroad from the operation of any subsequent grants to other 
companies not specifically declared to cover the premises. 



198 DECISIONS BELATIN6 TO THE PUBLIC LANDS. 

This would seem to effectually dispose of the claim of the Manitoba 
Hallway Gompauy as to such lands. 

It is true that it was also stated in said opinion — 

The act of March 3, 1865, as already stated, is expressly restrained from in any 
way interfering with any lands previously reserved by Congress or an^^ competent 
authority to aid in any work of public improvement. Consequently, under that act 
no claim could be asserted that would in any way interfere with the grants to the 
Northern Pacific Railroad Company. 

But I do not believe it was the intention of the court to enlarge 
upon the case in hand, nor do I think that it should be construed to 
include, as involved in this case, lands outside of the withdrawal on the 
general route of the Northern Pacific Railroad Company, and which 
were shown, upon the acceptance of the map of definite location of the 
Manitoba grant, to be within the ])rimary limits of said grant, and so 
far as the records showed, free from adverse claims. 

This was on December 19, 1871, and prior to this time, to wit, on 
November 20, 1871, the map of definite location of the Northern Pacific 
Eailroad Company opposite this land had been filed. 

Upon the lands reserved on December 19, 1871, the Manitoba grant 
could not operate, but these were only such as had been withdrawn 
upon the line of general route of the Northern Pacific Railroad Com- 
pany and such as fell within the primary limits adjusted to its line of 
definite location. 

As to the lands within the indemnity limits of the grant for the 
Northern Pacific Eailroad, outside of the withdrawal on general route, 
what were the rights of the Northern Pacific Eailroad Company f 

Since the decision of this Department in the case of Northern Pacific 
Eailroad Company v. Miller (7 L. D., 100), it has been uniformly ruled 
that the sixth section of the act of July 2, 1864 (13 Stat., 365), prohib- 
ited the withdrawal of indemnity lands on account of the Northern 
Pacific grant, so that there was no reservation thereof on account of 
the grant. 

In the case in 139 U. S., 1, it is stated, on pages 8 and 9: 

After a map of general route of the road of the plaintiff was tiled, as abo^e stated, 
and the line of the road in Minnesota was definitely fixed, the commissioner of the 
general land office designated, upon maps and records in his office, the limits of 
the lands granted by Congress to the plaintiff, according to the provisions of the act 
of 1864, and the above joint resolution, namely, the twenty, thirty and forty-milo 
limits on each side of the line of definite location, the first named being the limits of 
the lands in place; the second, the limits of the indemnity lands; and the third, or 
forty-mile limit, the limits of the further indemnity granted by the joint resolutiou 
of May 31, 1870. And upon such designation it was found that there was not in the 
8tate, within those limits, at the time of the final location of the road, an amount of 
lands intended by the grant of Congress for the plaintiff, not previously granted, 
sold, occupied by homestead settlers, pre-empted or otherwise disposed of. 

Again on page 19 — 

As to the objection that no eviilence was produced of any selection by the Secre- 
tary of the Interior from the indemnity lands to make np for the deficiencies found 



DECISIONS RELATING TO THE PUBLIC LANDS. 199 

in the landB within the place limita, it is sufficient to observe that all lands within 
the indemnity limits only made up in part for these deticiencifs. There was, there- 
fore, no occasion for the exercise of the judgment of the Secretary in selection from 
them, for they were all appropriated. 

This is urged as being, in efieot, a reservation of all lands witbin 
the indemnity limits of the Northern Pacific grant in Minnesota, as 
against the grant under the act of 1871 for the Manitoba Company. 

The language used by the court was i>erbap8 influenced by the admis- 
sions of the companies, said case having been tried upon an agreed 
statement of facts. 

The records of this Department show that upon the filing of the 
map of definite location of the Northern Pacific Railroad Company on 
November 20, 1871, the limits of the grant were established, the map 
being forwarded to the local office by letter from your office dated 
December 12, 1871, which letter was received December 21, 1871. 

While this diagram showed the forty mile or second indemnity belt, 
yet the letter forwarding it to the local office does not show that, as 
stated by the court, 

Upon such designation it was found that there was not in the State, within those 
limits, at the time of the final location of the road, the amount of lands intended 
b>' the li^ant of Congress for the plaintiif, not previously granted, sold, occupied by 
homestead settlers, pre-empted or otherwise disposed of. 

The letter states as follows : 

You will observe by reference to the act of 31 May 1870, that the additioTial 
indemnity lands therein granted are only for making up deficiency caused within 
their granted or 20 mile limits, by the disposal of lands in odd sections since the pas- 
sage of the act of 2nd July 1864. and upon the contingency that such deficiency 
lands cannot be obtained within the 10 mile indemnity limits prescribed by the act 
of 2Dd July 1864. Nor can the company make selection of any lands heretofore 
reserved for the Lake Superior or Mississippi railroad or reserved or granted for any 
other purpose and which were still reserved at the date of definite location of the 
road and map thereof filed in this office. 

Therefore in the examination of any lists of lands selected by the company 3^ou 
will require that those in the 20 mile or granted limits and those in the 30 mile or 
tirst indemnity limits shall be presented in separate lists and you will eliminate 
or reject therefrom any lands to which the United States had not full title or which 
were ** reserved, sold, granted, or otherwise appropriated, and^' not "free from pre- 
emption or other claims or rights at the time the line of saifl road" was '* definitely 
tixed, and a plat thereof filed in the office of the Commissioner of the General Land 
Office" which was 2l8t November 1871. 

It will be seen that said letter clearly coutemplated the exhaustion 
of the first indeniuity belt before the second was to be resorted to, but 
makes no finding on that contingency, the action amounting only to 
the establishment of the limits within which selections might be made 
if necessary, which were ordered withdrawn, as was the practice then 
prevailing. 

As to the lands involved in the case before the court, the decision 
therein made is of course binding, but in the administration of these 
grants the facts gathered from the records and files of the Department 



200 DECISIONS RELATING TO THE PUBLIC LANDS. 

are our guide, and in making disposition of the public grants we most 
be governed accordingly. 

I am therefore of opinion that no such reservation was created on 
account of the Northern Pacific Railroad grant outside the limits of 
the withdrawal upon general route at the time of the filing and accept- 
ance of the map of definite location of the St. Vincent Extension of 
the Manitoba Railroad, as would prevent the grant to the last meu- 
tioned company from taking effect. 

Your office decision, in so far as it awards the tracts under consid- 
eration to the Manitoba Railway Company, is accordingly affirmed. 



patent-ixai>\ti:rtent issi^e— vacation. 

OooK V, Taylor. 

Snit for the recovery of title will be advised where a patent, through inadvertence 
and mistake, is issued in contravention of departmental directions. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
(I. H. L.) mary 27, 1897. (J. L. McC.) 

Counsel for John F. Cook has filed a motion for review of depart- 
mental decision of January 19, 1895, affirming the decision of your 
office, dat^d April 6, 1893, dismissing his protest against the delivery 
to William A. Taylor of patent for the N W. i of the NE. \ of Sec. 32, T. 
6 S., R. 8 W., Las Graces laud district, New Mexico. (See 300 L. and 
R., 439.) 

The record facts of the case are in brief as follows: 

Taylor made pre-emption filing for the tract on February 16, 1884. 

On August 12, 188G, Oook filed an affidavit, alleging that the laud 
was mineral in character, and that he (the affiant) was owner of a 
mining claim thereon. 

Taylor made final proof August 26, 1886; and on September 27, same 
year, was allowed to make entry of the tract in controversy. 

A hearing on the affidavit was had October 30, 1886. 

The matter came in due course of appeal before the Department, 
which, on December 24, 1891, held that the land was agricultural in 
character, but that the testimony failed to show that the entryman had 
complied with the law as to residence, improvements, and cultivation. 

Your office, by letter of February 22, 1892, i)romulgated said decision, 
and stated further that Taylor would be allowed sixty days from notice 
*' within which to submit supi)lemental proof showing full compliance 
with the pre-emption law as to residence, improvements, and cultivation, 
if such is the fact; otherwise his entry will be held for cancellation." 
No supplemental proof was ever submitted, and no motion for review 
was filed. The case was declared closed by your office letter of April 
8, 1892. 



DECISIONS RELATING TO THE PUBLIC LANDS. 201 

The entry papers were filed in division ^'G" (the pre-emption divi- 
sion) of your office, with the endorsement, ''Land adjudged agricultural 
and contest closed. Sent to R. & R. April 8, 1892." The final proof 
(made August 26, 1886, nupra,) showed compliance with the pre-emption 
law. The testimony adduced at the hearing (had on October 30, 1886, 
supra,) was not with the entry papers. No note on the papers referred 
to the call made by division "N" (the mineral division) of your office, 
for supplemental proof. In other words, division "G" was wholly 
unaware of the action that had been taken by your office, the record of 
which was in division *'N." Therefore, upon report by division **G" 
that decision had been rendered and the case closed, patent was issued 
to Taylor on May 4, 1892. 

Counsel for Cook, learning of the issuance of patent, filed a jjrotest 
against its delivery; but your office, by letter of April 6, 1893, held: 

It is not necessary to question whether the patent in this case was issued inadvert- 
eDtly or not. It has been issued, signed, sealed, and recorded in this office; and this 
office has no further right to pass Upon the validity of Taylor's entry. 

From the above decision of your office (3ook appealed to the Depart- 
ment, asking that said decision be reversed, or as an alternative, that 
suit be instituted, for his benefit, to set aside the patent. The Depart- 
ment, on January 19, 1895, held that said decision was correct, and 
added: 

The Department has no legal authority to determine the qnestion of a duly executed 
patent. It has, then, no right to consider whether the patentee ought to have or 
receive the patent. (United States v. Schurz^ 102 U. S., 378.) The government is 
QDder no obligation to the petitioner respecting the relief iuvoked, and I am not 
satisfied that suit should be brought by the government to vacate the patent. 

In the motion for review of the above named departmental decision, 
coaDsel for Cook earnestly contend that gross fraud and wrong were 
committed by the entryman, or by parties whom he allowed to make 
use of his name. This, however, is a matter which need not be dis- 
cussed. It certainly has been shown that inadvertence and mistake 
were committed in issuing the patent. 

In the case of Williams v. United States (138 U. S., 514, 517), the 
supreme court said : 

The allegations of the bill are of fraud and wrong; but they also Khow inadvert- 
ence and mistake in the certification to the State; and it can not be doubted that 
iuadvertence and mistake are, equally with fraud and wrong, grounds for judicial 
iuterference to divest title acquired thereby. This is equally true in transactions 
between individuals and in those between the government and its patentee. . . . 
The facts and proceedings attending the transfer of title are fully disclosed in the bill. 
They point to fraud and wrong, and equally to inadvertence and mistake; and if the 
latter be shown the bill is sustainable, although the former charge against the defend- 
ant may not have been fully established. 

The above decision of the supreme court appears to me to be clearly 
apphcable to the case at bar. 



202 DECISIONS RELATING TO THE PUBLIC LANDS. 

Cook's petitiou asks, in substance, that the governmeut institute snit 
for his benefit. But, in my opinion, he makes no showing that wonld 
justify the bringing of suit for his benefit; as the Department hdd in 
its decision of January 19, 1895, ^^the government is under no obUga- 
tion to the petitioner respecting the relief invoked/' Therefore the 
motion lor review must be denied. 

In view, however, of the inadvertence and mistake committe<l by 
your office in issuing the patent in question in contravention of the 
departmental decision directing that Taylor's claim should not be 
allowed until he had furnished proof of compliance with the pre-emp- 
tion law, you are hereby directed to prepare the record in the case for 
submission to the Department of Justice with a view to institution of 
suit to set aside said patent. 



PRACnc:E— WAGON ROAI> GRANT-SETTLEMEXT CLAIM. 

Watson v. The Dalles Military Wagon Road Co. 

The advancement of cases on the docket in the General Land Office, is a matterrest- 
ing in the discretion of the Commissioner, nnd wiU not be interfered with by 
the Department unless an abuse of discretion appears. 

Mere occupation or use of a body of unsurveyed public land of indeiiuite area, with- 
out intent to acquire title to the particular portion thereof in controvensy, is 
not such an appropriation of that portion as to except it, or the sub-division of 
which it is a part, from the operation of a wagon road grant. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
(L H. L.) ruary 27, 1897. (E. B., Jr.) 

1 have considered the appeal of Samuel J. Watson from your office 
decision of August 31, 1896, in the case of said Watson against The 
Dalles Military Wagon Road Company, involving the NE. J of section 
25, T. 20 S., K. 46 E., Burns, Oregon, land district. 

Watson claims the laud under his homestead entry Xo. r>ll, therefor, 
made January 15, 1894; ^aid company claims it under the grant of 
February 25, 1867 (14 Stat., 409), to the State of Oregon, to aid in the 
construction of the said wagon road. This case was previously before 
the Department on appeal by Watson, and a hearing was then ordered 
March 6, 1896, to determine whether there liad been such appropriation 
of the land uixder the settlement laws as to except it from the operar 
tion of the grant. The hearing was held in May, 1896, and the case 
now again reaches the Department in regular course of proceeding. 

The land is within the primary limits of the said grant, and unless 
duly reserved or otherwise lawfully appropriated, the right of the com- 
l)any attached thereto upon the definite location of the line of the road 
November 1, 1869 (McDowell r. The Dalles Military Wagon Road Co., 22 
L. D., 599). Your office held, in effect, that the land wjis not so reserved 
or appropriated, that the right of the company attached thereto on 
the date last mentioned and that Watson's entry should be canceled. 



DECI8I0NB BELATING TO THE PUBLIC LAi^DS. 203 

The oonttmtHms of Watioii on i^^^eal may be reioeed to two, viz : first, 
that your oflhse erred in deciding the case ^^ within twelve days after the 
arrival of the record, in violation of Rule 73 of the Rules of Practice;" 
and second, in not holding that the land was so appropriated by settle- 
ment thereon of one Eli Keeny, as to except it from the operatiou of 
the grant. 

It appears that the record reached your office August 19, 189G, and 
that the case was therefore decided by your office on the twelfth day 
after the arrival of the record. The Rule of Practice referred to is as 
follows : 

After the CommiMiouer shall have received a record of te8tinioD^' iu a contested 
case, thirty days 'will be allowed to expire before any action thereon is taken, unless, 
in the judgment of the Commissioner, public policy or private necessity shall 
demand summary action, in which case he will proceed at his discretion, first noti- 
fying the attorneys of record of his proposed action. 

The advancement of cases in your office is discretionary with the 
Commissioner and will not be interfered with by the Secretary unless 
the discretion is shown to have been abused ; and the proceeding for 
the correction of any alleged abuse of discretion is by certiorari and 
not by appeal (Ex parte Frank Quinn, 9 L. D., 530, and Taylor v, Rogers, 
12 L. D., G94). Appellant's first contention is not therefore well taken. 

The testiniony shows that about the fall of 1805 or spring of 18C6 
two men, named respectively Bruce and McFarland, enclosed a tract 
of land of from eighty to two hundred and twenty-five acres, according 
to various estimates, on the west bank of the Owyhee river, some dis- 
tance below its junction with Snake river in said State, and occupied 
and used the same chiefly as a hay ranch. A brush fence on three 
sides and tbe river on the fourth formed the enclosure. Said township 
was then unsurveyed. It was not surveyed until August, 1875. The 
precise position of this enclosure with reference to the subdivisions of the 
subsequent public survey does not clearly appear. According to a 
diagram ofifered in evidence, based upon the testimony of one of appel- 
lant's witnesses, the ranch embraced nearly all of the S W. J of said sec- 
tion, part of the NW. 4» about thirty-five acres in the S. J of the NE. ^ 
and about forty acres in the NW. ;J of section 36. Said Keeny suc- 
ceeded Bruce and McP'arland in the occupancy of the ranch about July, 
1867, and continued there until about 1872. According to appellant's 
witnesses, some hay was cut by Keeny on one or two occasions along 
the north side of said enclosure, upon ground now claimed to have 
been within the same and i)art of said NE. J. No other use thereof by 
Keeny or his predecessors is alleged or shown. 

From the official plat and field notes of the public survey it appears 
tbat the Owyhee River enters said section 25 a few rods east of the 
southwest corner thereof and flows northeastward through it, passing 
out of the section about the same distance south of the northeast cor- 
ner, and that its position in said section is considerably northwest of 
the position shown on said diagram. This correction of the position 



204 DECISIONS RELATING TO THE PUBLIC LANDS. 

of thenver in said section, taken in connection with the testimony gen- 
erall}', would leave only very few acres in the SE. J of the said NE. J, 
if any, within the boundaries of the ranch, even upon the basis of the 
enlarged acreage shown in the said diagram, which basis, however, as 
already indicated, is not correct. The buildings used as dwellings by 
these ranchmen were on the extreme western portion of the ranch and 
only a few yards within the brush fence. It is not clear, therefore, 
from all the evidence, that any jmrtion of said 2sE. ^ was embraced in 
the said ranch as occupied by the parties named, or any of them. 
Subsequent to the occupation of Keeny it would appear that the ranch 
was considerably enlarged, embracing from six hundred to eight hun- 
dred acres, which fact is immaterial excei)t to account to some extent 
for the uncertainty in the minds of the witnesses as to its boundaries 
at and prior to November 1, 1809, when the company's rights under its 
grant attached. 

It is not shown that any of the parties ever claimed or intended to 
claim said ranch or any part thereof under the pre omption or home- 
stead laws or to take it for the purpose of making thereon a home for 
themselves. It is not shown that Bruce or McFarland had any of the 
qualifications of a pre-emptor or homesteader, nor that Keeny was com- 
petent to exercise either a i)re-emption or a homestead right at any time 
during his occupancy of said ranch. He was apparently a citizen of 
the United States and the head of a family, bnt none of the witnesses 
knew whether he had or had not exercised homestead and ])re-emption 
rights. He could exercise such rights but once. It is familiar doctrine 
that in the absence of affirmative showing that an alleged settler on the 
public lands had the necessary qualifications of a settler, his occupancy 
thereof would not except the same from the operation of any such gi-ant 
as is herein relied upon. 

Even if it should be conceded, however, that Keeny had all the 
qualifications of a settler, the fact that appellant has not shown, as 
already indicated, that Keeny occupied any portion of the land in con- 
troversy under any claim of homestead or pre emption settlement, would 
be fatal to his second contention. Mere occupation or use of a body 
of unsurveyed public land of indefinite area, without intent to acquire 
title to the particular portion thereof in controversy, directly proven 
or to be reasonably presumed from acts done in the premises, is not 
such an appropriation of that portion as to except it, and much less 
the larger legal subdivision of which it is a part and which Watson 
claims, from the operation of such a grant. The testimony most favora- 
ble to appellant, that of his witness Harris, does not tend to show that 
said ranch covered more than thirty-five or forty acres, at the utmost, 
of the land in controversy, and that testimony — from which the dia- 
gram above referred to was made — is shown to be largely guesswork 
and unreliable as to the .v ' and precise location of the ranch. 

The decision of your office is affirnietl in accordance with the fore- 
going views. Watson's entry will be canceled. 



DECISIONS RELATING TO THE PUBLIC LANDS. 205 

PRrV^ATE CLAIM-ACT OF MAY 2CI, IHiW, 

Francisco Ferreira. 

Private claims decided and recommended for confirmation by the commissioners, 
and referred to Congress by tbe Secretary of the Treasury January 14, 1830, are 
co:3 firmed by section 1, act of May 26, 1830. 

Secretm^ Francvs to the Commissioner of the General Land OffieCj Feb- 
(1. H. L.) ruary 27, 1897. (P. J. C.) 

The Department is in receipt of your office letter (''G") of January 5, 
1897, in reference to the private claim of Francisco Ferreira to certain 
islands — or keys — in the southern part of Florida. 

The attention of your office recently has been brought to this matter, 
as stated in your said office letter, by one Horatio Crain, who claims 
** present ownership of a portion of the land embraced in the claim^ 
and desires a patent.^ 

This matter has been the subject of consideration by your office, from 
time to time, for more than three-quarters of a century and is still 
unsettled. The purpose of your office letter is to have the matter 
finally settled so that those claiming the lands may secure title thereto. 
The facts disclosed are as follows : 

The petition of Francisco Ferreira to the governor of Florida is as 
follows : 

[TraDslatioD.] - 
To fcit excellency the Gorenior: 

Don Francisco Kerrey ra, of this city, to your exceUency respectfuny shiweth: 
That be is desirous of dedicating himself to the cultivation of the land, and, with 
some slaves he owns, establish himself on some place that may be advantageous, 
whenever he can collect funds for the purpose of obtaining hands: and as the serv- 
ices he has rendered, and is still rendering, to the country with his person and 
property, and the groat losses he has suffered during the revolution of this province, 
are well known to j'our excellency, he therefore prays that you will be pleased to 
^ant him in absolute property a key situated among those called the Florida Keys, 
and is known bj' the name of Key Bacas, and four small islands which are situated 
m the vicinity thereof, that he may, when ho collects sufficient funds, proceed to 
form his establishment thereon; which may, at the same time, be very useful for 
those who have the misfortune of being shipwrecked near said' place— a favor he 
hopes to obtain from the goodness of your excellency. 

Saiut Augustine, January 4, 1814. 

Fran'('0 Ferrkira. 

On the following day, January 5, Kindelan ordered : " Let there be 
grauted to him in absolute property the Key Bacas and the small 
island adjacent, without injury to a third person.'' (Ex. Doc. No. 58, 
44th Cong., 1st Session, House of Representatives.) 

Congress, on May 8, 1822, passed an act (3 Stat., 709), " for ascer- 
taiuing claims and titles to land within the Territory of Florida," which 
provided for tbe appointment of three commissioners by the President, 
before whom every person, or their heirs, etc., ^'claiming title to lands 



206 DECISIONS RELATING TO THE PUBLIC LANI>8. 

nnder any patent, grant, concession,'' etc., '^ dated previous to Jannary 
14, 1818," sha]! file his claim, '< setting forth, particnlarly, its situation 
and boundaries, if to be ascertained;" that the commissioners shall 
examine and determine on the validity of said patents, etc., but ail 
claims must be presented prior to May «31, 1823. Section 5 defines the 
powers of the commissioners, and, among others, is this: 

They shall Dot have power to confirm any claim or part thereof where the 
amount claimed is undefined in quantity, or shall exceed a thousand acres; but in 
all such cases shall report the testimony, with their opinions, to the Secretary of the 
Treasury to be laid before Congress for their determination. 

By act of March 3, 1823 (3 Stat., 754), Congress amended the act 
above quoted, by providing that the commissioners therein provided 
for should confine their labors exclusively to West Florida, and a new 
eommission of three was provided for East Florida, and within that 
district, shall ** possess all the jwwers given by, perform all duties 
required, and shall, in all respects, be subject to, the provisions and 
restrictions of the act of the eighth of May," supra^ ^^ except so far as 
the same is altered or changed by the provisions of this act." Section 
2 of this act provides, that claims in favor of actual settlers at the 
time of cession are to be confirmed, where the claim does not exceed 
three thousand five hundred acres; 

and said commissioners shall have power, any law to the contrary notwithatandlDj^. 
of deciding on the validity of all claims derived. from the Spanish g«»vernmeDt iu 
favor of actual settlers, where the quantity does not exceed three thousand live 
hundred acres. 

Section 5 provided that claims not filed on or before December 1, 1823, 
shall be held to be void and of no eii'ect. 

By act of February 28, 1824 (4 Stat, 6), the time was again extended 
till January 1, 1825, and so much of the former act as made void those 
claims not filed before December 1, 1823, was rex)ealed. Section 3 of 
this act declares that no person shall be deemed an actual settler 
within the provisions of the prior act, 

unless such persons, or those nnder whom he claims title, sfaall have been in the 
cultivation, or occupation, of the land, at and before the period of the cession. 

It may be remarked, at this stage of the recital of facts, that it is 
fairly deducible from the petition of Ferreira that he was not at the 
date of the grant or cession an actual settler on the land as defined 
by the statute just quoted. Hence,. his claim would not come within 
the provision of the statute authorizing the commissioners to confirm 
the claims of actual settlers where they did not exceed three thousand 
five hundred acres, but would be controlled by the provisions of the 
first act, which limited their confirmations to one thousand acres, pro- 
vided, of course, his claim exceeded the latter amount. 

In Volume 3, American State Papers — Duff" Green — commencing on 
page 658, is found the <^ Minutes ot the Board of Florida Land Com- 



DECISIONS RELATING TO THE PUBLIC LANDS. 207 

missioners." It is recited that they assemble for action, under the acts 
of May 8f 1S22, and March 3, 1823, for '^ ascertaining claims and titles 
to lands within the district of East Florida.^' In these minutes, under 
date of November 17, 1823, is found this: 

Francis Ferreira presented his meinoriul to this board, praying confirmation of 
title to an island known by the name of Bai^attj and four small islands adjoining, 
fiitnated to thesonth of Cape Florida, and known as one of the Florida Keys, with a 
conoessiou to memoralist made by Governor Kindelnn, and dated the 5th of .Fauiiary, 
1^14 ; which are ordered to be filed. 

This, SO far as my research can be extended, is the first presentation of 
this claim. 

Pursuing this subject in its chronological order, it is found that Con- 
gress from time to time extended the period within which claims should 
be presented to the boards. By the act of February 8, 1821" (4 Stat., 
202), it was provided that all records, etc., in the possession of the 
"secretary of the late board'* be delivered to the register and receiver 
of the district of East Florida, and it was made their duty 

to examine and decide all claims nud titles to land in East Florida, not heretofore 
decided by the late board of commissioners, subject to the limitations, and in 
coDformity with the provisions of the several acts of Congress providing for the 
adjustment of private land claims in Florida. 

In pursuance of this law the local officers, in January, 1829, submitted 
their final report to the Secretary of the Treasury, which was trans- 
mitted by him to the President of the Senate, January 14, 1830 (Vol. 5 
Am'n St. P'rs, etc, 327). On page 420 of the same volume, and being a 
part of the said report, will be found " abstract No. 15 of sixteen cases 
sent back from Washington to the register and receiver for their 
report." No. 13 is that of Francis Ferreira; "date of concession Junu- 
ary 6, 1814;" acres blank; conceded by Kindelan, "Royal order, etc., 
1790," and described as Key Bacas. In referring to this claim, they 
say, in a note : 

No. 13 — Francis Ferreira, clm't. — Key Bacas. The grant to this land was made 
by Governor Kindelan, in January, 1814, for services. The testimony is filed in the 
Land Office at Washington. It was recommended for confirmation on the 19th June, 

1824. 

• 

I do not find any record in the American State Papers warranting 
tbe statement here made that this grant "was recommended for con- 
firmation on the 19th June, 1824." This is the date of the confirmation 
of the Key Vacas, an entirely different grant, although to a person by 
the 84ime name. Key Vacas is described as containing "14 acres with- 
out the old lines, and about one and three-fourths miles north of the 
City of St. Augustine," while Key Bacas is located in the Florida Keys 
at the extreme south of the State. It may be possible that the local 
officers in this report have confused the two grants. 

It appears that m 1874 one E. C. Howe, claiming to be one of the 
heirs of Charles Howe, who held the proj^erty by mesne conveyances 



208 DECISIONS RELATING TO THE PUBLIC LANDS. 

irom the original claimant, made inquiry of your office as to the status 
of the claim, and he was informed, by Mr. Commissioner Burdett, 

tbnt it had always been held by this (your) office that the sixteen claims that had 
been omitted from the Commissioner's report, which was submitted to Congreos 
February 21, 1825, had never been confirmed. 

Howe then applied to have the claim confirmed under act of June 
22," 1860 (12 Stat., 85), as extended and amended by acts of March 2, 
1867 (14 Stat., 544), and June 10, 1872 (17 Stat., 378). 

Action was evidently taken under these acta, for it appears by Ex. 
Doc. No. 58, supra, that Mr. Secretary Chandler, on January 6, 1876, 
transmitted ** a report on the private claim of Charles Howe's lejral 
representatives" to the Speaker of the House of Representatives, ia 
the following language: 

Pursuant to the requirement of the fourth section of the act approved Jnne 22. 
1860, (12 Stat., 85,) I have the honor to transmit herewith the report of the register 
and receiver of the laud-office at Gainesville, Fla., acting us commissioners under 
said act, on the private land-claim of the legal representatives of Charles Howe, 
deceased, together with letter of the Commissioner of the General Land-Office, of 
the 28th ultimo, a]iproving Raid report. 

So far as disclosed, nothing was ever done by Congress on this, 
except to print the report. 

Thus the matter seems to have rested, until December 8, 1896, when 
Horatio Cram addressed your office relative to the same. In your said 
office letter to the Department as a result of this letter from Crain, it is 
said : , 

I do not agree with the views held hy Commissioner Burdett, that it was doubtful 
as to whether Feri'eira s claim has l>een conHrmed by the act of May 28, (26, ) 1830. * - * 
I am of the opinion that the claim of Francisco Ferreira, having been recommended 
foi confirmation, was duly confirmed by the first section of the act of May 26, 1830 
(4 Stat., 405), and that no further action is necessary on the part of Congress. 

The first section of the act of May 26, 1830, reads as follows: 

That all the claims and titles to land filed before the register and receiver of the 
land office, acting as commissioners, in the district of East Florida, under the quan- 
tity contained in one league square, which have been decided and recommended for 
coufirinatton, contained in the reports, abstracts and opinions, of said register and 
receiver, transmitted to the Secretary of the Treasury, according to law, and 
referred by him to Congress, on the fourteenth day of January, one' thousand eight 
hundred and thirty, be, and the same are hereby confirmed, etc. 

It is clear that this act refers to such claims as were filed before the 
register and receiver, 

which have been decided and recommended for confirmation, contained in the 
reports, abstracts and opinions of said register and receiver, 

and referred to Congress by the Secretary of the Treasury Jannary 
14, 1830. This claim was referred to Congress by the Secretary of the 
Treasury on said date, as appears by abstract No. 15, and it was stated 
by the local officers that '*it was recommended for confirmation on the 



DECISIONS RELATING TO THE PUBLIC LANDS. 209 

19th Jane, 1824.'' The local oflBcers evidently reported the fact only of 
the recommendation by the former board, and do not make any recom- 
mendation themselves. While I am anable to find in the minutes of the 
board, contained in American State Papers, etc., any official record of 
its recommendation for confirmation, yet there is in the Ex. Document 

No. 58, this : 

B, — Decree. 

Fraacis^Farreira ) (^jjj.jjj ^ ^ jgj^^j^ ^jjjj^ jj^^y jg^^^ ^^^ ^^^^ ^^^^^ islands 
The United States. S »^J^^*"*- 



In this caae the claimaDt produced a concession made to him by Governor Kindelan 
for the island set out in this memorial, dated January 5, 1814, the quantity undefined. 

The board not beinp; authorized to decide finally on claims of this nature, but 
eoiiceiying that the claimant has made out an equitable title for the lands which he 
claims, it is therefore recommended to Congrean for confirmation. 

June 19. 

I, Antonio Alvarez, keeper of the public archives of East Florida, do hereby cer- 
tify the following to be a true and correct extract from the registry of claims kept 
by the board of land-commissioners, (book A, page 250,) now on file in my office, 
according to law. 

Witnesa my band and seal of office, at the city of Saint Augustine, Territory of 

Florida, the twenty-fourth day of March, A. D. one thousand eight hundred and 

thirty-six. 

Antonio Alvarez, K. P, A, 

If the copy of this judgment is to be accepted as authentic, and I 
see no reason why it may not, then the statement of the local officers 
would seem to be verified. 

The area contained in the grant is <' under the quantity contained in 
one league square,'' as determined in Teresa Rodriguez (18 L. D., 64), 
being, as reported by the local officers and Commissioner Burdett, 
4444.15 acres. 

1 therefore concur in the conclusion of your office, as announced in' 
md letter of January 5, 1897, and suggest that appropriate action be 
taken by your office to issue patents to the proper party or parties. 



JUDOMKNT OF CANCBIil^TlON— APPMCATION TO ENTEB. 

GUILLOBY t\ BULLER. 

rnder a decision holding an entry for cancellation, if within a specified period the 
entryman fails to comply Avith certain requirements, or appeal, the judgment 
becomes ftnal at the expiration of said period, If the requirements of said deci- 
sion are not complied with, and no appeal is taken, and the land involved is 
thereafter open to entry by the first lej^al applicant; but during the time so 
accorded to the entryman an application to enter said land should not be received. 

Secretary Francis to the Commissioner of the General Land Office, Feb- 
(I. H. L.) rvary 37, 1897. (G. J. G.) 

This controversy is in relation to the S. ^ of the SE. ^, Sec. 6, T. 4 
S., B. 2 E., New Orleans land district, Louisiana. 
10671— VOL 24 14 



210 DECISIONS RELATING TO THE PUBLIC LANDS. 

The record sUows that Arcius Yidrine made adjoining farm home- 
stead entry for this land on December 14, 1S81, claiming as bis original 
farm the S. i of SW. ^, same section, township and range. It seems 
that Vidrine had lived on his original farm since 1876. He continued 
to reside thereon until November 1, 1884, when, as he claims, finding: 
opi>ortunity to sell at a good price, he sold his original farm and moved 
away. He remained away until March 10, 1890, when he returned and 
established residence on the adjoining farm. 

On April 25, 1892, he submitted final proof in support of his adjoin- 
ing farm entry. He claims to have believed that he would receive 
credit for the time he lived on his original farm after making his 
adjoining farm entry. Vidrine's said final proof was rejected by the 
local office, and he appealed to your office. In your office letter of 
July 27, 1893, you decided as follows : 

In a^oining farm homestead eDtries the party must fulfil the requiremente of the 
homestead law as to residence and cultivation, but will not be required to remove 
from the land which he originally owned in order to reside upon and cultivate tbat 
which he thus acquires under the homestead law, since the whole 160 acres are con- 
sidered as containing one farm or body of land, residence upon and cultivation of a 
portion of which is equivalent to residence ui>on and cultivation of the whole. Mr. 
Vidrine having disi>08ed of his original farm, his adjoining farm homestead entry 
must fall as it has no basis on which to stand. Mr. Vidrine could not be alloweil 
credit for residence on his original farm for the three years (nearly) from December 
14, 1881, to November 1, 1884, and add the same to the two years residence upon and 
cultivation of the land from March 10, 1890, to April 25, 1892. 

By your said office decision of July 27, 1893, Vidrine was allowed to 
make application to have the character of his entry changed to that of 
one for settlement and cultivation, and when he could show five years 
residence upon and cultivation of this land as required by law, be 
would be allowed to submit final proof. He was informed through said 
decision that in the event of his failure to appeal therefrom or make 
application for change of entry, the proper steps would be taken look- 
ing to the cancellation of the same. 

Yidrine never appealed from your said decision, and he claims that 
it was impossible for him to comply with the requirements therein as to 
change of entry. He thereupon began looking about for some one to 
whom he could sell the improvements he had placed on the land. He 
found a purchaser in the person of Arcade Buller to whom he disposed 
of his improvements for the sum of about $450. 

In the mean time, on September 1, 1893, John L. Guillory filed an 
application dated August 30, 1890, for entry of said land. He made 
the proper deposit of fees, the receipt of which was duly acknowl- 
edged on same date. 

On November 6, 1893, Arcade D. Buller filed his application dated 
September 25, 1893, for the same tract, accompanied by the proi>er 
deposit. It is stated by Buller's counsel that his application was pre- 
sented at the local ofiice prior to that date, but that the same together 



DECISIONS RELATING TO THE PUBLIC LANDS. 211 

with the fees was returned. This action was attributed to the change 
of officers at the New Orleans Office which occurred about that time. 
The indorsement, however shows that Buller's application was filed 
on November 6, X893. 

Neither of the above applications was rejected upon presentation. 

On March 3, 1894, a relinquishment by Vidrine was filed in the local 
office bearing the note in type-writing, " To be used in the matter of 
homestead application of Arcade D. BuUer for the land relinquished 
by Vidrine, and applied for at the same moment by Buller." It seems 
that this relinquishment was made September 5, 1893, but was not 
filed until above date. In view of said relinquishment, the local office 
on April 7, 1894, rejected the application of Guillory, for the reason 
that the tract applied for was embraced in the homestead entry of 
Arcade D. BuUer. 

Guillory appealed to your office, and by letter of May 22, 1894, you 
afiirmed the action of the local office, and in said decision you stated 
as follows: 

Since an application to enter land which is not subject to entry at the time the 
application is made, confers no rights apon applicant (Hall et al v. Stone^ 16 L. D., 
199), and as the applications of Guillory and Bnller shoald have been rejected upon 
pre.sentation, they could not be recognized as pending applications at the date of 
Vidrine's relinquishment. Therefore, Buller, by renewing his application (as appears 
from the note on Vidrine's relinquishment), on March 3, 1894, appeared as the first 
legal applicant, and it was proper that his entry was allowed. 

This decision was on the principle that Vidrine's adjoining farm 
homestead entry was still alive, and so remained until March 3, 1894, 
when cancelled for relinquishment; hence, no rights were gained by 
filing applications prior to that date. 

Under date of June 21, 1894, resident counsel for Guillory filed in 
your office a motion for review of your said office decision of May 22, 
1894* The principal errors assigned were substantially as follows: In 
holding that Buller had the prior legal application on file when the 
land became vacant; in not holding that the land was public and sub- 
ject to entry when Vidrine's final proof on his adjoining farm home- 
stead entry was rejected by your letter of July 27, 1893; in allowing 
Bailer's entry upon his application of September 25, 1893, when the 
record shows that he did not make a new application on March 3, 1894. 

Resident counsel for Guillory contends, among other things, that if 
the land was not public until the relinquishment was filed, then Buller's 
entry was illegal, the application being made prior thereto, citing Mills 
p. Daly (17 L. D., 347) ; that, upon the theory that a new application 
on the part of Buller was necessary, it is insisted in the absence of an 
appeal by Vidrine or an application on his part for change of entry as 
allowed by the action of July 27, 1893, said decision of July 27, 1893, 
was a final judgment and took effect from that date, citing Perrott v. 
Connick (13 L. D., 598). 



^ 



212 DECISIONS RELATING 10 THE PUBLIC LANDS. 

By your office decision of September 6, 1894, you reiterated and 
reasserted your conclusions of May 22, 1894, but modified said deei^iiion 
to the extent of saying that in the presence of the adverse claim of 
Guillory, your office could not allow Buller to perfect his entry by now 
filing an affidavit, as it were nunc pro tunc showing that he was quali 
fled on March 3, 1894, to make entry. You therefore directed the local 
office to call upon the respective parties and allow them thirty days iu 
which to file new applications and new affidavits, for entry of said 
tract. On receipt of such applications within the time prescribed, they 
were to be treated as simultaneously made, and the local office was 
then to allow said parties to bid for the privilege of perfecting entry. 
The right of entry was to be awarded to the highest bidder, and the 
local office was to allow his entry of record. 

As heretofore shown, your office held that the land in question was 
reserved from entry until the filing of Vidrine's relinquishment on 
March 3, 1894. This was error. Any rights that Vidrine may have 
had ceased upon his failure to appeal from your office decision of July 
27, 1893, or to change his entry in accordance with the instrnctions 
contained therein. He had sixty days within which to comply with the 
terms of said decision. Upon his failure to do so the said decision 
became a final judgment, and the land thereby became subject to entry 
by the first legal applicant. Within that time and to that extent yoar 
office was correct in holding that the land was not subject to entry, and 
that applications made within that time should have been rejected. 

It will be observed that Guillory's application was filed September 1, 
1893, which was prior to the expiration of the time allowed Vidrine by 
your office decision to exercise his alternative right of appeal or to 
change his entry, which said decision did not of neicessity become a final 
judgment until the expiration of sixty days from the date it ^as ren- 
dered. Guillory never renewed his said application. BuUer's applica- 
tion was filed November 6, 1893, after the expiration of the sixty days, 
when the judgment of your office had become final and the land thereby 
released from any rights Vidrine may have had, and subject to entry. 
Hence, the application of Buller to enter the land having been made 
after it became subject to entry, his rights are superior to those of 
Guillory. 

As previously set out herein, counsel for Guillory contends that, under 
the ruling in the case of Perrott v. Connick (13 L. D., 598), in the 
absence of an appeal by Vidrine on an application on his part for 
change of entry, your office decision of July 27, 1893, was a final judg- 
ment and took effect from that date. This contention is not well made, 
for the reason that, as heretofore shown, your said offi<;e decision could 
not become a final judgment until the expiration of the time allowed 
Vidrine to appeal or change his entry. Hence, the doctrine announced 
in Perrott v. Connick, supra, can not be made to apply to this case. 

At the same time, no rights could be secured by filing applications to 



DECISIONS RELATING TO THE PUBLIC LANDS. 213 

enter daring the period allowed Vidrine to appeal or change his entry, 
as the land was thereby reserved subject to his rights, and no such 
applications should have been received. The proper procedure in such 
cases is stated in the recent case of Oowles v. Huffed al, (24 L. D., 81), 
as follows: 

That DO application to make eutry will be received by the local officers during the 
time allowed for appeal from a jad(;ment of cancellation of an entry; but in all 
Buch casea the land involved will not be subject to entry or application to enter until 
the rights of the entryman have been finally determined, until which time no other 
rights, inchoate or otherwise, can attach. 

It has been determined that your decision of July 27, 1893, was a 
judgment of cancellation, which became final upon Vidrine's failure to 
appeal within the time allowed. No application to enter could attach 
within that time. Buller was the first to file after the land became 
subject to entry; hence, he was the first legal applicant. 

In support of the holding that your office decision of July 27, 1893, 
was a judgment of cancellation, it will be observed that by said decision 
Vidrine was served with notice of what he might expect from your 
office. He was presented with the alternative of changing his adjoin- 
ing farm entry to a settlement entry, to be followed by residence and 
cultivation sufficient to make a five years' showing, or in the event of his 
failure to do this, or to appeal from your said decision, he was informed 
that proper steps would be taken looking to the cancellation of his 
entry. Vidrine took no action. Tlie language of your said office deci- 
sion is construed to be equivalent to a judgment holding Vidrine's entry 
for cancellation, unless within sixty days from notice he should comi)ly 
with the requirements contained in said decision. 

It will thus be seen that there is no middle ground for these parties 
as suggested in your office decision of September 6, 1894. Buller's 
application must either be accepted or rejected. He either has rights 
sufficient to entitle him to entry of this land or he has none. Any 
rights he may have were secured by his application filed November 6, 
1893. If he secured any rights whatever by his said application, they 
were such as to entitle him to the land in totOj and not merely such as 
would entitle him to an equal bid for it with some other party. 

Your decision of September (5, 1884, is accordingly so modified as to 
allow BuUer^s application to make entry, and the same will be made of 
record* 



214 DECISIONS RELATING TO THE PUBLIC LANDS. 

INDIAN LANDS-ALLOTMENT— TRUST PATENT— CANCELLATION. 

Hull et al. v. Ingle. 

The issaaooe of a trust patent on an Indian allotment terminates the jnrisdiotioii of 
the Secretary of the Interior over the lands covered thereby as public lands, and 
he consequently has no authority, in the absence of special statutory provision, 
to cancel such patents for the purpose of correcting erroneous allotments. 

The authority conferred upon the Secretary of the Interior by the act of January 26. 
1895, to cancel a trust patent, in order to correct a mistake in the allotment, is 
limited to oases in which the alleged error is one of those specifically named in 
said act. 

Assistant Attomey-Oeneral Lionherger to the Secretary of the Interior ^ 

February 15^ 1897. (W. C. P.) 

On October 12, 1896^ Acting Secretary Sims referred to me certain 
papers in the matter of Sylvester Hull et ah v. Jane Ingle, involving 
the NB. i of Sec. 24, T. 37 N., E. 5 W., M. D. M., Oalifornia, with a 
request for an opinion thereon. Afterwards on November 20, 1896, the 
papers in regard to hearings ordered on certain approved Indian 
allotments involving a similar question were also referred to me for an 
opinion. Still later on December 3, 1896, the papers in the matter of 
an allotment to Lizzie Bergen involving a similar question were also 
referred to me for an opinion. The Commissioner of the General Land 
Office has since requested that all these matters be considered together. 

The question involved is as to the effect of a trust patent issued upon 
an Indian allotment under the provisions of the act of February 8, 1887 
(24 Stat., 388), and the act amendatory thereof approved February 28, 
1891 (26 Stat., 794) and the jurisdiction of this Department to cancel 
the same. 

In the case of Hull v. Ingle the Commissioner of the General Land 
Office recommended that a hearing be ordered to determine the charac- 
ter of the land with a view to the cancellation of Ingle's trust paten t^ 
if it should be determined it was mineral in character as alleged by 
Hull, reference being made to the act of January 26, 1895 (28 Stat, 
641), as authorizing such action. The papers being referred to this 
office for an opinion my predecessor on June 8, 1896, submitted his 
opinion holding that the case did not come within the purview of said 
act of 1895. 

The Commissioner resubmits the matter and states his reasons for 
80 doing as follows: 

After a careful consideration of the matter I feel constrained to direct attention to 
the fact that the Hon. Assistant Attorney General, in rendering the opinion referred 
to omitted to consider what is regarded hy this office, with all deference, as the 
determining point in the matter, viz: the particular nature of the 8o>called patent 
in question, and it is in view of this that I venture to again direct attention to the 
case. 

This is, as the Commissioner of the General Land Office says, a very 
important question, but it must be borne in mind that the interest of 



DECISIONS RELATING TO THE PUBLIC LANDS. 215 

the Tndians, who are so often described as the wards of the govern- 
ment, is as much entitled to consideration as is that of white claimants 
or of the government itself. 

The allotment act contains the following provision in regard to 
patents: 

m 

That upon approval of the allotments provided for in this act by the Secretary of 
the Interior he shall cause patents to issue therefor in the name of t)ie allottees, 
which patents shall be of the legal effect, and declare that the United St^ates does 
and will hold the land thns allotted for the period of twenty-five years, in trust for 
the sole use and benetit of the Indiiin to whom such allotment shall have been made, 
or in case of his decease, of his heirs according to the laws of the State or Territory 
where ench laud is located, and that at the expiration of said period the United 
States will convey the same by patent to said Indian, or his heirs as aforesaid, in 
fee discharged of said trust and free of all charge or incumbrance whatsoever. 

The Commissioner of the General Land Office takes the position 
that the title held by an Indian allottee under the first or trust patent 
is an equitable title only, that an entryman under the public land laws 
after the issuance of final receipt holds also an equitable title, that 
this Department has authority to cancel an entry illegally allowed and 
therefore it must have authority to cancel an allotment trust patent 
illegally allowed. In other words, his position is that the Indian 
allottee stands in the same position during the trust period of twenty- 
five years as does an entryman during the period between the date of 
final entry and the issuance of patent thereon. If this theory is to 
prevail the Indian allottee is placed at a great disadvantage as com- 
pared with the citizen entryman. In the one case the period within 
which the title remains subject to attack is the full trust period of 
twenty-five years while in the other it is theoretically nothing and 
practically but a comparatively short time. This is not the position 
that one whose interests the government is bound to protect in all 
points should be forced to occupy. 

Another fact that should be taken into consideration in this matter 
is, that allotments are made by the agents of the government. The 
aUotment act contains the following provision: 

That the allotments provided for in this act shall be made by special agents 
appointed by the President for such purpose, and the agents in charge of the 
respective reservations on which the allotments are directed to be made under 
inch rules and regulations as the Secretary of the Interior may from time to time 
prescribe. 

While this provision refers specifically to allotments to reservation 
Indians, yet in the following section it is provided that allotments to 
non-reservation Indians shall be made ^'in quantities and manner as 
provided in this act for Indians residing upon reservations.'' The 
responsibility is at least as strong upon the government as upon the 
allottee to see that the allotment is proper in all respects. While 
these facts may not go directly to the question of the authority of this 
Bepartment, yet they should be borne in mind in the discussion of 



216 DECISIONS RELATING TO THE PUBLIC LANDS. 

that question because they show the peculiar position of the govern- 
ment in its relationship to the allottee. In these matters the gov- 
ernment is the grantor, also the trustee, and at the same time it is the 
guardian of all the interests of the allottee as an Indian. 

The policy of inducing Indians to breakup their tribal relations and 
to take lands in severalty was adopted as a means of advancing them 
towards civilization. It was recognized, however, that they would not 
have an adequate conception of the value of property and would not in 
all probability be able to preserve their holdings if left unrestrained, 
and hence the salutary provision that the United States would hold 
the land in trust for the period of twenty-five years. The provision was 
made solely in the interest of the Indian, aud to secure him in the pos- 
session of the land until he should become able to protect himself 
therein. 

The act of July 4, 1884 (23 Stat., 90), provided that Indians who had 
located or should locate upon the public lands might avail themselves 
of the provisions of the homestead law " as fully and to the same extent 
as may now be done by citizens of the United States,'' and provided 
for i)atents in the same words as were afterwards used in the allotment 
act of 1887 hereinbefore quoted. It would certainly be most unjust 
and inequitable to the Indians to hold that their title under the home- 
stead law was subject to attack before this Department for twenty- 
five years longer than the title of a citizen might thus be attacked, yet 
the language in the act of 1884 conferring upon Indians rights under 
the homestead law is the same as that of the allotment act. and if it be 
held that this Department has authority to cancel patents issued under 
the latter act it must necessarily be held that it has authority to cancel 
those issued under the homestead law. The manifest injustice in this 
holding is of itself a strong argument against its adoption. 

These allotment or trust patents have been considered by this 
Department as having the same effect as other patents in ousting the 
Department of jurisdiction in the premises. The fact that they have 
been thus treated is an argument in favor of the continuance of the 
rule. That is, no change should be made unless it be clear that this 
practice is radically wrong. 

We have also a legislative declaration as to the extent of authority 
in the Secretary of the Interior in the premises in the act of January 
26, 1895, Hiipra, conferring upon him power to cancel such patents in 
those cases where a double allotment has been made or a mistake has 
been made in the description of the land. If it had been understood 
that the power to cancel a patent, wrongly issued, existed, it would 
have been unnecessary to enact the law of 1895. While the faet that 
Congress took this view of the matter should not be considered as 
decisive of the question, it is entitled to consideration, and should be 
given weight as an argument in support of the position that the Secre- 
tary had not, before that, authority to cancel such patents even though 



DECISIONS RELATING TO THE PUHLIC LANDS. 217 

illejjally issacd, and has not now authority in that direction beyond 
that conferred upon him by said act. 

The provision that these lands should be held in trust for the Indian 
was made for his benefit and protection. In his opinion of July 27, 
1888 (19 Op. Atty. Gen., 161), Acting Attorney General Jenks, referring 
to said provision, uses the following language: 

Bat Congress has not deemed it safe, iu making the Indian a freeholder, to give 
him at once the same control over the land as other freeholders enjoy. The legisla- 
tion above mentioned deprives the Indian settler of the right of convening or 
eDcnmb«nng the land, in any way, for a period stated, or provides that it shall be 
held by the United States for a given time in trast for the sole use and benefit of the 
Indian, and, at the expiration of such time, be conveyed to him by patent. 

Further on in said opinion he says: 

It is tme that the Indian who gives up his wild life has taken a great step in the 
direction of becoming a citizen, bat his situation as a member of a civilized commu- 
nity exposes him to dangers which call for the fostering care and protection of the 
<;oremment, without which the attempt to make him a useful citizen roust fail 
necessarily. It is only after a oonsideiable period of probation that he can be 
educated to anderatand the dignity and responsibilities that belong to citizeu.nhip 
and the ownership of property, and it is to protect him, while receiving this 
edncation, that congress has placed the above mentioned rcstraiuts upon his 
property rights. 

If it be true, and it will not be seriously disputed, that this provision 
was made in the interest and for the benefit of the Indian, it should 
uot be so administered as to operate to his disadvantage. It is tbe 
daty of those charged with the administration of such a law to so con- 
strue it as to roost certainly attain the end contemplated, while, at the 
same time doing no violence to the language used. If the duty devolv- 
ing upon the trustee in this case were simply that of executing the 
patent at the end of the specified period, the trust would be a simple 
or dry one, and it might perhaps be properly held that the full legal 
title vested at once in the cestui que trust. The trustee here has, how- 
ever, other and further duties in connection with the trust. This fact 
is clearly set forth by Attorney General Garland in his opinion of Jan- 
nary 26, 1889 (19 Op. Atty. Gen., 232) as to the right of the allottee to 
sell and cut timber standing upon the lands allotted to him. After 
mentioning the provisions of the act of February 8, 1887, supra, as to 
the issuance of two patents be uses the following language: 

Prior to the issninf^ of the second patent the United States is to act as trustee of 
the lands. This relation as to the lands^is snbstitnted for the gnardianshi]) hereto- 
fore exereised over the tribe. iTor twenty-five years, or longer, the obligation exists 
to see that the intent of the law shall be faithfully carried out, and no unlawful 
waste eommitted either by the cestui que tru4ft or any one else. 

For the proper execution of the trust as thus considered it is neces- 
sary that the legal title should rest in the trustee, and it follows there- 
fore that the allottee takes under the first patent an equitable title 
only. It does not necessarily follow, however, tliat the Secretary of 
the Interior has authority to cancel that first or trust patent. It 



218 DECISIONS RELATING TO THE PUBLIC LANDS. 

woald «eem that a due regard for the rights of the Indians wonid 
require that they be treated as if a third party had been named as 
the trustee. If that had been done this Department could have no 
greater authority in the premises than it has with respect to other 
patents. This position is in entire accord with the spirit which should 
govern all dealings between the government and its wards, and should 
be assumed and adhered to, unless the law makes it the plain duty of 
the Secretary to do otherwise. It should be borne in mind in the deci- 
sion of this question, not only that the United States in these trans- 
actions stands as grantor, as trustee and as guardian for the Indians, 
and that the Indian is grantee and ward, but also that the Secretary 
of the Interior must act in two capacities, first, as the agent and officer 
of the government in charge of all busiuess pertaining to the public 
lands, and second as the one in charge of Indian affairs. In his first 
capiicity he approves the allotment selections and causes a patent to 
issue as provided by law. When a tract of land is selected for an 
allotment it is thereby reserved firom other disposition pending final 
action upon that selection, but when that final action is taken by the 
issuance of the first or trust patent the land is thereby finally disposed 
of and is no longer in any sense public land undex the control of the 
Secretary of the Interior in his capacity of the ofiicer in charge of 
business pertaining to the public lands. His work in that capacity is 
completed, and he is relieved of control of the land in that capacity 
just as effectually as if all further duties in respect to said land had 
been devolved upon an entirely different officer of the executive depart- 
ment. From the time of selection or at least from the time of approval 
thereof to the issuance of the first patent the duties of the Secretary 
in respect to said land are mixed. He stUl has a certain degree of 
control over it as public land and at tbe^ same time he is to care for it 
as guardian of the Indian, but from the date of the trust patent be is 
vested with the care and control of the land solely as agent of the 
trustee and as guardian of the allottee. His duty then is to protect 
the Indian not only in the present use and enjoyment of the property 
but also as to his future use and enjoyment thereof. If the dual char- 
acter of the Secretary of the Interior be borne in mind, it will be easy 
to determine the point at which his jurisdiction over the land as public 
land ceases and his control of it as the property of the Indian begins. 
That point of time is the date of the issuance of the first patent pro- 
vided for by the law, by which the present equitable estate in the land 
is granted to the allottee, and the ultimate fee simple is guaranteed 
him. 

In dealings between the government and its wards, the Indians, all 
matters of doubt should be resolved in the interest of the Indian. 
Thus, if the authority of the Secretary of the Interior to cancel the 
patents in question were doubtful, I should be constrained to advise 
against its exercise. As a rule, the powers of an executive ofiicer are 



DECISIONS RELATIKG TO THE PUBLIC ULNDS. 219 

not to be enlarged hj implication in the direction of encroachment 
upon the functions of the judiciary. While this rule obtains generally 
it is esiieeially applicable here where the enlarged powers if used at 
all would be in derogation of the interests of the Indians. 

Many mistakes have i>robably been made both in the way of making 
allotments of land not subject to disposal in that manner and by award- 
ing allotments to persons not entitled thereto. This work is to be done 
by agents of the government, and such mistakes must be due, at least 
to a considerable extent, to the carelessness of the agents charged 
with that duty. I gather ironi the papers before me that this fact has 
been recognized both by the Commissioner of the General Land Office 
and by the Commissioner of Indian Affairs, and that steps have been 
taken to prevent such mistakes as far as possible in the future. In the 
instructions issued by Secretary Smith on June 15, 1896 (22 L. D., 709), 
the respective duties of those two officers are defined, that of determin- 
ing as to the status of the applicant being left to the Indian Office, and 
that of determining the character of the allotment and the right of the 
allottee being left to the General Land Office. If the machinery now 
entirely under the control of the government be i)roperly handled the 
great evils which it is claimed the Department sliould have the power 
to correct would be prevented. It would be a dangerous policy for the 
executive department to assume powers properly belonging to the 
judiciary, in the absence of express legislative authority for the pur- 
pose of correcting evils, the existence of which could have been pre- 
vented under the authority clearly belonging to the executive. 

That mistakes will occur is quite certain but such cases have been 
in part at least, provided for in the act of January 26, 1895, and if it 
be absolutely necessary to the proper administration of the law that 
the powers of the Secretary should be still further extended. Congress 
should be asked to enact such laws as may be necessary to that end. 

The Commissioner of the General Land Office in his letter submitting 
this case says: 

Ihave not referred herein to the act of January 26, 1895 (28 Stat., 641), aa authority 
for this proposed action as I am of the opinion that said act was pasHed merely to set- 
tle any possible doubts which might have existed in the minds of some persons as to 
the authority of the Department to cancel such so called patents. The power to do 
what is authorized by said act existed before its passage, and would exist were the 
Si*t repealed. 

In the matter of the allotment of Lizzie Bergen subsequently sub- 
mitted, which he asks to be considered in connection herewith he argues 
that a patent issued upon an allotment covering lands chiefly valuable 
for the timber thereon was erroneously and wrongfully issued within 
the purview of said act of 1895, and therefore should be canceled under 
the authority vested in the Secretary by that act. I have therefore 
examined that question in connection with the opinion submitted by my 
predecessor. The provisions of said act, and the reasons set forth for 



220 DECISIONS RELATING TO THE PUBLIC LANDS. 

the conclusion reached in said opinion are embodied in the followiug 
quotation therefrom: 

The act of January 26, 1895 (28 Stat., &11), reads as follows: 

** That in all cases where it shall appear that a double allotment of land has here- 
tofore been, or shall hereafter be, wrongfully or erroneously made by the Secretary 
of the Interior to any Indian by an assumed name or otherwise, or where a mistake 
has been made or shall be made in the description of the land inserted in any patent, 
said Secretary is hereby authorized and directed, during the time that the United 
States may hold the title to the laud in trust for any such Indian and for which a 
conditional patent may have been issued, to rectify and correct such mistake and 
cancel any patent which may have been erroneously or wrongfully issued, whenever 
in his opinion the same ought to be cancelled for error in the issue thereof, or for the 
best interests of the Indian, and if possession of the original patent cannot be 
obtained, such cancellation shall be effective if made upon the records of the General 
Land Office ; and no proclamation shall be necessary to open the lands so allotted 
to settlement." 

The patent here in question is a trust patent and therefore of the class contem- 
plated by said act. The mistake if any, in the issuance of said patent is not one 
which is specifically mentioned m said act. The authority to cancel it, if it exists 
at all, must be under the very general expression, ''and cancel any patent which 
may have been erroneously and wrou<^fully issued, wherever in his opinion the same 
ought to be cancelled for error in the issue thereof," If these words be read by 
themselves they might be held to authorize the cancellation of any patent whatever, 
but the context plainly shows that it must be limited to trust patents issued to 
India u allottees. I am inclined to the opinion that it must be further limited and 
held to refer to those trust patents only which rest upon mistakes of the character 
mentioned in the first i)art of the act. If it had been intended to authorize the can- 
cellation of any trust patent erroneously issued, theu it was entirely unnece.S8ar\- to 
specify any class of mistakes which might be corrected. It would have been sufii- 
cient to say : *' The Secretary of the Interior is hereby authorized and directed to 
cancel any trust patent issued to an Indian allottee whenever in his opinion such 
patent has been erroneously and wrongfully issued." 

To hold that this net is to be construed as if it read thus would be to say that the 
first half of the law as it reads in the books is without meaning. This would be 
to violate that elementary rule of construction, which requires that all parts of a 
statute must, if possible, be given effect. To follow that rule in this instance it is 
necessary to say that the Secretary was authorized to correct certain mistakes in 
allotments and to cancel any patent issued upon such erroneous allotment. Such 
construction gives effect to all parts of the act and does no violence to the language 
used. 

This act enlarges the Jurisdiction of the Secretary of the Interior and confers 
upon him powers theretofore exercised by the courts only, and is therefore to be con- 
strued strictly and held to authorized action in only those cases coming clearly 
within the meaning of the law. 

In the case under consideration the party was entitled to an allotment and the 
land applied for waa properly described in the patent. Upon the record, as then 
made up, the patent was properly issued. It is now alleged, however, that the 
proof upon which the allotment and the patent in question was issued was, as to 
the character of the land, false and fraudulent. If the construction of said act, as 
set forth above, be the correct one, this case does not present such a mistake as is 
contemplated by this law. 

The question as to the character of this land was necessarily considered before 
the issuance of patent, and the conclusion was reached, and correctly so upon the 
record, as then made up, that it was of the character contemplated by the laws 
authorizing allotments. It is now asserted that this judgment was wrong and the 



DECISIONS RELATING TO THE PUBLIC LANDS. 221 

Department is asked to reopen the matter, make a further investigation and reverse 
its former judgment. I do not think the law in question demands such action. 

The propositions laid down here are sound and the conclusion 
reached logically follows from said propositions. It will not do to 
assume that the Secretary of the Interior has authority to exercise the 
functions properly belonging to the courts simply because fraud has 
been committed in connection with some of these allotments. Ko 
doubt patents have been procured under other laws through fraud, but 
it would not be argued that the Secretary therefore has jurisdiction to 
investigate such cases and authority to cancel the patent if he shall 
determine it was wrongfully issued. The authority conferred by the 
act of 1895 may not be extended by implication, but must be limited 
to those cases clearly coming within the letter of the law. I find no 
good objection to the conclusion reached in my predecessor's opinion. 

After a full consideration of this matter I conclude and so advise 
you that the Secretary has no authority to cancel the trust patent 
lieretofore issued in this case. 

Approved: 

David B. Feancis, 

Secretary. 

CONTEST— PKEFERENCrB RIGHT OF ENTRT. 

HOBGES ET AL. V. OOLCORD. 

The preferred right of a saocessful contestant is not defeated or impaired by adverse 
settlement claims acquired subsequent to the entry under attack. 

The right of a successful contestant accorded by section 2, act of May 14, 1880, is 
not dependent upon the truth of the charge as laid, if the cancellation of the 
entry is the result of a contest prosecuted in good faith. 

Secretary Francis to tlie Commissioner of the General Land Office^ Feb- 
(LH. L.) ruary J27y 1897. (E. W. H.) 

1 have considered the appeals of James L. Hodges and William 0. 
Runyon from your office decision of October 3, 1896 (on review), dis- 
missing their contests and aUowing the entry of Golcord to i*emain 
intact. 

This case involves lots 2, 3, 12, 13, 14, 15, and 18 of Sec. 30 T. 11 K,, 
R. 3 W,, Oklahoma district, O. T. 

Most of the facts as they appear in the record have been heretofore 
stated in departmental decisions of December 1, 1894 and April 12, 
1895, in the case of Simpson and Golcord v, John Oaymon, and are full}' 
set forth in your decision of October 3, 1896, from which the present 
appeals are taken, so that only such portions as are material to the 
pending issues need be here repeated. 

Upon a hearing as to the laud in question between Golcord and Oay- 
mon, upon the charge of disqualification by reason of Gaymon having 
entered the Territory during the prohibited period, — in which the 



222 DECISIONS RELATING TO THE PUBLIC LANDS. 

application of Hodges to intervene was denied — the local office decided 
in favor of Gaymou, and Coleord appealed. 

On March 21, 1893, yonr office held that while Gaymon was in the 
Territory at the time of the opening — working for the A., T. & S. F. 
B. R. Co. on its right of way, he gained no advantage therefrom — and 
affirmed the decision below denying the application of Hodges and 
dismissing the contest of Coleord. 

This decision came before the Department for consideration upon 
the appeal of Coleord, the motion for review of Hodges (which was 
not acted on by your office), and a third contest filed by Runyon on 
April 13, 1893, alleging prior settlement and the disqualification of 
Coleord. Hodges also filed a supplementary affidavit of contest mak- 
ing the same charges. 

While the case was pending before the Secretary, to wit, on April 
12, 1893, Gaymon filed his relinquishment of the tract, and Coleord 
made homestead entry No. 6850 of said land. 

On December 1, 1894, the Department, having in view the rights of 
all parties, held that '^upon the cancellation of Gaymon's entry by his 
voluntary relinquishment, all contests pending against it necessarily 
abated. There remained nothing for the Department to do, and the 
case was closed," thus denying Hodges' motion for review "but with- 
out prejudice to any rights which Hodges may lawfully assert and 
maintain against the present entryman." The papers in the case of 
Runyon were returned for appropriate action. 

Upon this decision, your office, on January 5, 1895, directed a hear- 
in.r* on the charges of Hodges and Runyon againt Coleord. 

Before said hearing was had, however, a motion for review of the 
departmental decision of December 1, 1894, was filed by Coleord, insit>t- 
ing that the Department erred in not awarding him the preference 
light of entry by reason of the statement made in the relinquishment 
of Gaymon. 

Although said motion for review was denied, the Department, in its 
decision thereon of April 12, 1895, said : 

Gaymon's relinquishment, written on the back of his dnplicate receipt, is in these 

words and figures foUowing: '^I hereby relinquish all my right to and interesting 

and to the government of the United States, and ask that my entry be canceled of 

record. This reliuqnishment is made for the reason that my entry is voidable, for 

the reason that I was in the Oklahoma country at noon of April 22, 1889, and so held 

by the decision of the supreme court of the United States in the ca«e of Smith r. 

Townsend. 

JouK Gaymon. 

Subscribed and acknowledged before me this 12th day of April, 1893. 

D. D. Leach, RegUter, 

It is evident by this that the relinquishment of Gaymon was induced by the con test 
of Coleord; and the right of a successful contestant is superior to the right of any oue 
who has not a right superior to that of the entryman whose entry was in content. 
But as a hearing has been ordered upon the application of Hodges to contest Col- 
cord's entry; no judgment will be rendered in this case, in advance of snch hearing. 

The rights of the respective parties can then be determined. 



DECISIONS RELATING TO THE PUBLIC LANDS. 223 

At the hearing had in the case of Hodges and Eunyon against Col- 
cord, on September 20, 1895, Colcord moved to dismiss said contests, for 
tbe reason that neither of said plaintiffs alleged sufficient facts to show 
a superior right to that of Gaymon, the former entrynian. 

The evidence introduced by Hodges and Runyon showed that Hodges 
had resided on said land since July 22, 1889; Runyon since May 13, 
18110, and Colcord since 1893, and that Colcord had paid Gaymon $650 
for his relinquishment, but no evidence was introduced to show the 
disqualification of Colcord. 

Colcord introduced no evidence but elected to stand upon his said 
motion to dismiss, and upon "the record affecting this tract of land." 

On October 25, 1895, the local office rendered a decision recommend- 
ing the dismissal of said contests, basing its action upon the opinion 
expressed by the Department, relative to said relinquishment, and the 
right of a successful contestant, in its decision of April 12, 1895 {supra). 

Upon the appeals of Hodges and Runyon your office, on April 29, 
reversed said local office decision and denied to Colcord the preference 
right to make entry of the land, holding that said departmental deci- 
sion of April 12, was not res judicata upon this point, and that whether 
Colcord acquired any right to said land by virtue of his content depended 
upon whether the charge of disqualification against Gaymon is true. 
In its decision upon Colcord's motion for review (October 3, 1896) your 
office used this language: 

It is ftppareut that the decision of this office now sought to be reviewed, misinter- 
preted the decioion of the Secretary, which clearly held that Gaymon's relinquish- 
ment was the result of Colcord's contest, and that his right was superior to the 
right of any one whose settlement was not made prior to the entry of Gaymon. 
Knt independently of said decision such should have been the ruling of this office. 
The record shows as well as the relinquishment of Gaymon, that he was in the 
Territory at the hour of the opening and therefore under the decision of the supreme 
court of the United States in the case of Smith r. Townsend he was clearly dia- 
qoAlified. It was unnecessary to introduce evidence npon this point. As Hodges 
and Rnnyon failed to show any settlement upon the tract in controversy prior to 
the entry of Gaymon, they could not, by a settlement made thereafter, and while 
the land was covered by said entry, and subject to Colcord's contest, gain any rights 
by their settlement. Hence the decision of the local office dismissing the contests 
of Banyon and Hodges was correct and should have been affirmed. 

Your office, therefore, granted the motion for review, dismissed the 
contests, and allowed the entry of Oolcord to remain intact. 

The thirty-four specifications of error. In which the judgment here 
complained of is assailed by the attorney for Hodges, may be general- 
ized so as to bring the material issues in the case within the scope of 
these two questions: 

1. Did your office err in reviewing and setting aside its decision of 
the29thof April, 1896 ? 

2. Was there any circumstance connected with the relinquishment 
of Gaymon, which adversely affected Colcord's right to enter the land; 
either as the first applicant therefor after it became subject to entry, 
or, as a successful contestant in the exercise of his preference right f 



224 DECISIONS RELATING TO THE PUBLIC LANDS. 

It appears to rae that the claims of Hodges and Runyon rest upon no 
other basis than that of settlements upon land, which, at the time, was 
covered by the entry of (laymon. It had been se^egated from the 
public domain by proper official action. No one could acquire any 
present right to it while in this condition. A settlement upon it, with 
a view to the initiation of an adverse claim — if not amonuting to a 
trespass under the doctrine of Atherton r. Fowler (96 U. S., 513) is 
certainly without any legal status (Maggie Laird, 13 L. D., 502). 

There is a line of cases to which attention is called in the argument 
of Hodges' attorney, in apparent conflict with this doctrine, which 
holds that a settler on land covered by the entry of another acquires a 
legal status as against the government the instant such entry is relin- 
quished, and the right thus acquired is not defeated by the entry of a 
third party immediately following such relinquishment. (McGowan r. 
McCann, 15 L. D., 542; Fosgate v. Bell, 14 L. D., 459; Poole r. 
Moloughney, 11 L. D., 197). 

In all of these cases — the settler being upon the land at the moment 
it became a part of the public domain and subject to entry — his right 
of priority was recognized as superior to that of a third party whose 
claim rested upon an entry subsequent to the settlement. The relin 
quishment had no other effect than to relieve the land from incumbrance 
and open up the other questions upon which the decisions turned. 
But in the case at bar the question is whether Gaymon's relinquish- 
ment was the result of Colcord's contest! 

If this be the fact Colcord had a preference right of entry which 
nothing could defeat except his own disqualification, or a right superior 
to that of Oaymon, the original entryman. 

It is unnecessary to pass upon the conflicting interpretations of the 
departmental decision of April 12, 1895, as given in your office decisions 
of April 29, 189C, and October 3, 189G, respectively, further than to 
hold that the judgment of the Department in said decision was sus- 
pended to await the issue of the hearing which had been ordered upon 
the application of Hodges to contest Colcord's entry. Said decision, 
however, did express a very decided opinion "that the relinquishment 
of Gaymon was induced by the contest of Colcord," and, also, that: 
" the right of a successful contestant is superior to the right of anyone 
who has not a right superior to that of the entryman whose entry was 
in contest." 

This language — in view of the expressed purpose to render no final 
judgment in the case — must be regarded as dicta and having no other 
efiTect than a preliminary intimation to the contestants that, uulci^s a 
right superior to Gaymon's was established at the hearing, the prefer- 
ence right of Colcord would not be ciffected. 

As neither Hodges nor Kunyon alleged actual settlement prior to 
Gaymon's entry, and as their contests were subsequent in date of 
filing to the contest of Colcord, there was no error in rejecting Hodges' 
application to intervene in the latter. 



DECISIONS RELATING TO THE PUBLIC LANDS. 225 

The only issue was as to G^iymon's disqualification, by reason of 
having entered the territory during the prohibited period. 

Upon that issue — Simpson, who had filed the first contest,' liaving 
abandoned it, Golcord, as next in order, had the right of way as against 
Hodges and Bunyon. No rule is better settled than that contests are 
entitled to precedence in the order of their filing at the local office. 

The record shows that Golcord was diligent in the prosecution of his 
contest, and that it was pending on appeal before the Hon. Secretary, 
at the time Gaymon's relinquishment was filed. 

The question of Oaymon's disqualification by reason of his presence 
iu the Territory during the prohibited period has not been passed upon 
by the Department, and it is unnecessary to pass upon it now for the 
reason that it ceased to be an issue when he relinquished his entry. 

Section 2 of the act of May 14, 1880, declares that 

in all cased where any person has contested, paid the land office fees and pnicnred 

the cancellation of any pre-emption, homestead or timber- culture entry he 

ahall be allowed thirty days to enter said lands. 

There is nothing in the language here used which makes the prefer- 
euce right of the contestant dependent upon the truth of the charge of 
disqualification of the en try man. If the cancellation of the entry — 
whether by the relinquishment of the en try man, or the judgmeut of 
the Land Department — was the result of the contest, the preference 
right of entry inures to the contestant by operation of law. 

The authorities agree that a relinquishment filed during the pend- 
ency of a contest is presumptively the result of the contest, (Webb t?. 
lioughrey et aL<, 9 L. D., 440, and cases therein cited) and I find nothing 
in the record to overcome this presumption in the case at bar. 

It is contended that it was the $650 paid by Golcord which moved 
G<iymon to make his relinquishment, and that Gaymon's statement 
(indorsed on his duplicate receipt) that: 

This relinqnishment is made for the reason that my entry is voidable, for the reason 
that I was in the Oklahoma ooantry at noon of April 22, 1889, and so held by the 
decision of the supreme oonrt of the United States, in the case of Smith r. Townsend, 

is ontruthful. The facts and circumstances of the case lead me to a 
different conclusion. 

Gajrmon had resisted Golcord's contest at the hearing before the 
local office, and again, when it came before your office on Golcord's 
appeal, and still again, when it came on further appeal before the 
Department. In fact, Gaymon did not relax his hold upon his entry 
until the supreme court rendered its decision in the case of Smith v. 
Townsend (149 XJ. S., 490) — a decision from the court of last resort, 
upon a state of facts, similar in nearly every respect, to the facts in his 
own case. 

This decision was upon the 3d of April, 1893, and Gaymon's relin- 
quishment was ten days thereafter, to wit, on April 13th, 1893. It 
would be contrary to every sound principle of deduction to conclude 
10671— VOL 24 15 



226 DECISIONS RELATING TO THE PUBLIC LANDS. 

that Gaymou would bave continued to rely upon the decisions of the 
local office holding him to be qualified — although affirmed by year 
office — in the face of a decision of the supreme court holding the 
contrary view. 

I have, therefore, no doubt whatever that Gaymon's relinquishment 
"was induced by the belief that the charge of disqualification as made 
^u Colcord's contest would be sustained by the Department, on the 
authority of Smith v. Towusend. That he should desire under such 
circumstances to save the cost of his improvements and of the labor he 
had expended u|K)n his entry, by its relinquishment, was natural, aod, 
cannot with fairness, be assailed as fraudulent. 

His ofier to sell to Hodges — so far from being an indication of bad 
fnith — ^is, to my mind, a proof that there was no collusion between 
Gaymoii and Golcord. 

The case of Cullins v. Leonard (17 L. I)., 412), cannot be followed iu 
the case at bar, for the reason that Leonard's contest was in bad faith 
And speculative — as he had held Pentz' relinquishment in his posses- 
sion during the pendency of his contest against Pentz' entry, and 
frequently offered the same for sale. 

The conclusions reached in your office decision (on review) of October 
3, 1896, are affirmed. The contests of Hodges and Bunyon will be 
dismissed and the entry of Golcord allowed to remain intact. 



RAILROAD GRANT— FORFEITITRK- ACT OF JITNE 8«, 187-1. 

St. Paul, Minneapolis and Manitoba Ry. Co. v, Thompson. 

The conditions on which the extension of time for the completion of the road was 
giyen by the act of June 22, 1874, operate as a revocation of the grant to the 
extent of the rights of actaal settlers at the date thereof; and the protection thns 
given such settlers is effective, even though the lands were listed under the grant, 
and such list approved prior to the passage of said act. 

Secretary Francis to the Commissioner of the General Land Office^ Feb- 
<I. H. L.) ruary 27, 1897. (F. W. C.) 

The record in the case of the St. Paul, Minneapolis and Manitoba 
Railway Company v. Peter Thompson, involving the N. J of the SW. J 
and the N. ^ of the SE. J of Sec. 11, T. 148 N., R. 49 W., Crookston 
land district, Minnesota, was forwarded with your office letter of 
December 19, 1893, on appeal by the company from yoar office decision 
of July 20, 1883. 

It appears that the appeal was duly filed in time but the same was 
mislaid and for that reason the record therein was not forwarded at an 
earlier day. 

The tract involved is within the jirimary limits of the grant for said 
<M)mpany upon the line known as the St. Vincent Extension of said 
joad, as shown by the map of definite location filed and accepted 



DECISIONS RELATING TO THE PUBLIC LANDS. 227 

December 19, 1871. The grant made to aid in the construction of this 
part of the road was by the act of March 3, 1871. 

The road was required to be completed by March 3, 1873, but the 
time was extended to December 3, 1873, by the act of March 3, 1873 
(17 Stat., 631). The company failed to complete the road within the 
time allowed, and by the act of June 22, 1874 (18 Stat., 203), the time 
was again extended to March 3, 1876, upon the following conditions: 

That all rights of actaal settlers and their grantees who have heretofore in good 
iaith entered apon and actaally resided on any of said lands prior to the passage of 
this act, or who otherwise have legal rights in any of snch lands, shall be saved 
and secured to snch settlers or snch other persons in all respects the same as if said 
lands had never been granted to aid in the construction of the said lines of railroad. 

The company listed the land November 28, 1873, which list was 
approved by this Department April 30, 1874. Under the instructions 
contained in your office letter of September 3, 1874, which directed 

that " settlers upon the lands of the St. Vincent Extension, 

who were actual settlers at the date of the act of June 22, 1874, and 
applied to file within the legal period, are protected by the statute and 
their filings may be received," etc., Thompson was permitted to file 
pre-emption declaratory statement for this land, in which settlement 
was alleged May 28, 1874. 

By letter of March 28, 1882, the local officers forwarded Thompson's 
appeal from their action rejecting his tender of proof and payment 
upon his filing covering this tract for the reason that the tract had 
been duly listed by the said company, as before stated. It was upon 
a tender of this proof and payment that the present controversy arose, 
the matter being considered in your office decision of July 20 1883, in 
which it was held that as Thompson's entry was made subsequent to 
the expiration of the grant of December 3, 1873, the same comes 
within the provisions of the third section of the act of April 21, 1876, 
and is therefore confirmed. Your office decision therefore directed 
that Thompson be permitted to make final entry of the land; from 
which action the company appealed to this Department. 

As thus presented, the case is in all important particulars similar to 
that of Tronnes v. St. Paul, Minneapolis and Manitoba Kailway Com- 
pany (18 L. D., 101), wherein it was held (syllabus) : 

The act of June 22, 1874, extending the time for the completion of the road, in 
aid of which the previous grant had been made, and protecting the rights of actual 
settlers at the date of said act, required the company to file its acceptance of the 
terms imposed thereby, but the protective provisions therein, for the benefit of 
settlers, are not dependent upon the company's acceptance of the act. 

The conditions on which the extension of time was given by Congress in said act 
oj)erate as a revocation of the grant to the extent of the rights of actual settlers at 
he date thereof. It is in eflfect an extension of the protection intended to be given 
by the excepting clause in the original grant, and is applicable to all lands whether 
patented or otherwise. 

The certification of lands prior to the passage of said net in no wise affects the 
right of an actnal settler protected thereby, nor does it embarrass the Department 
in extending to snch settler the protection of said act. 



228 DECISIONS KELATIKG TO THE PUBLIC LANDS. 

For the reasons given in said decision your office decision, recogniz- 
ing tbe filing by Tliompsou as against the grant to said company, is 
affirmed, and the papers are herewith returned for your further action 
looking to the completion of said entry. 



STATE SELECTION— CEKTmCATIOISr-PATENT. 

Edwin F. Fbost et al.* 

The inadvertent certification of State selections at a time 'when the lands covered 
thereby are included within an existing entry, and involved in proceedings then 
pending before the Department, is inoperative, and constitutes no obstacle to the 
issuance of patent in accordance with the final judgment in said proceedings. 

Secretary Francis to the Commissioner of the General Land Office^ Decern* 
(I. H. L.) ber 26j 1896. (J. L.) 

This case involves lots 3 and 4 of section 35, and lots 3 and 7 of sec- 
tion 30, in T. 31 S., B. 39 E., Gainesville laud district, Florida, contain- 
ing 146.75 acres. 

On June 28, 1895, list No. 14 of lands selected for the State of Florida 
under the provisions of the act of Congress of March 3, 1845 (5 Stat., 
788), and sections 2275 and 227(5 of the Revised Statutes, and embrac- 
ing the four lots described, was approved by the Secretary. Where- 
upon, the State of Florida, by deeds dated July 10, 1895, for valuable 
considerations, conveyed lot 3 of section 35 and lot 3 of section 30, con- 
taining together 88 acres, to E. M. Lowe; and lot 4 of section 35 and 
lot 7 of section 30, containing together 58.75 acres, to G. M. Robbins, 
and to B. F. Hampton and H. E. Taylor as trustees for the benefit of 
James M. Graham, in equal shares; that is to say, one undivided half 
of said 58.75 acres to said Robbins, and one undivided half thereof to 
said trustees. 

On July 31, 1895, your office informed the authorities of the State of 
Florida, that the lands in question had been inadvertently and through 
mistake certified to the State, and requested the governor to immedi- 
ately execute and transmit to your office a proper deed reconveying 
the said land to the United States, and offered to permit the State to 
select an equal quantity of land elsewhere in lieu thereof. In reply 
your office was advised that the State had already disiK>sed of said 
land, as above stated, and had thereby, divested itself of title, and 
was without legal authority to reconvey the land to the United States. 
Nevertheless, the governor, through the commissioner of agriculture, 
under date of May 28, 1896, transmitted to your office a quit-claim 
deed to the United States for the four lots of land aforesaid, bearing 
date August 17, 1895, and executed by the board of education of the 
State of Florida, under the provisions of sections 234 and 235 of the 
revised statutes of the State. 



Not reported in Vol. XXIIL 



DECISIONS RELATING TO THE PUBLIC LANDS. 229 

Yoar office was of opinion tbat said quit-claim was ^< without effect 
for the reason that the State had previously, to wit: on July 10, 1895, 
divested itself of title.'' And therefore your office by letter "G" of 
July 2, 1806, at the instance and request of Homer Kessler, submitted 
to the Secretary the following recommendation : 

In order therefore that the United States may be reinvested with title, I respect* 
fally recommend that the Honorable Attorney General be requested to cause the 
proper proceedings to be instituted to obtain a judicial decree declaring said list 
null and void so far as the same embraces lots 3 and 4 of section 35, and lots 3 and 7 
of section 36, T. ^ S., R. 39 £., and that E. M. Lowe, G. M. Hobbins, and B. F. 
Hampton and H. £. Taylor, trustees for James M. Graham, be joined as parties to 
such suit. 

With said letter your office transmitted all the papers in the case, 
consisting of forty-four files. They are voluminous, and begin with 
May 7, 1877. 

It appears tbat on August 25, 1883, Edwin Frost was permitted to 
make cash entry, Ko. 6090, of the four lot^s of land aforesaid, under 
the second section of the act of June 15, 1880 (21 Stat., 237). Said 
entry was contested and various proceedings were had in your office, 
daring the progress of which, E. M. Lowe as owner of lot 3 of section 
35 (containing 48 acres) and lot 3 of section 36 (containing 40 acres), 
and Homer Kessler as owner of lot 4 of section 35 (containing 18.75 
acres), and lot 7 of section 36 (containing 40 acres) — ^both claiming 
Qoder Frost's title — were made parties to the controversy. 

On May 15, 1803, your office held Frost's entry for cancellation. 
Lowe and Kessler both appealed ; and on December 8, 1894, this Depart- 
meui affirmed your office decision. 

On April 13, 1895 (within the time prescribed by the Eules of Prac- 
tice), Kessler filed a motion for a review of said departmental decision. 
And while said motion was pending and undecided, your office inad- 
vertently and by mistake recommended the approval of list No. 14 of 
lauds selected by the State of Florida, and thereupon the Secretary 
approved said list as aforesaid. 

On July 6, 1895 (21 L. D., 38), this Department on consideration of 
Kessler's motion for review, revoked and annulled the departmental 
decision of December 8, 1894, and held Frost's entiy intact. 

After a careful examination of all the papers this Department is of 
opinion, that it is not necessary to begin judicial proceedings to set 
aside, as to lots 3 and 4 of section 35, and lots 3 and 7 of section 3G, the 
approval and certification of list No. 14 described in your letter of 
recommeodation; that the General Land Office and this Department 
were without authority to dispose of or to take any action in respect of 
the lots of land aforesaid while Kessler's motion for a review of depart- 
mental decision of December 8, 1894, was pending and undecided, as 
stated in your letter, and while the land was segregated by Frost's 
entry; and that therefore the approval and certification of said list !N^o. 
14, is null and void as to the lots of land aforesaid, and interposes no 



230 DECISIONS RELATING TO THE PUBLIC LANDS. 

obstacle to tbc issoing of patents for said lots in accordance with the 
departmental decision of July 6, 1895. (See case of Weeks t?. Bridgman, 
159 U. S., 541). 

Your office is, therefore directed to issue to Homer Kessler a patent 
for lot 4 of section 35, and lot 7 of section 36, T. 31 S., B. \) E. ; and to 
E. M. Lowe (upon his making application therefor), a patent for lot 3 
of section 35, and lot 3 of section 36, T. 31 S., R. 39 E.* 

The State of Florida will be permitted to select elsewhere an equal 
quantity of public land in lieu of the four lots aforesaid. 



PRACTICE— APPEAL-CERTIORARI. 
ElHSTAD V. i^ORTHEBN PACIFIC R. R. Oo. 

A writ of certiorari will not issue where it is apparent that the appeal, if before the 
Department, woald be diamiBsed. 

Secretary Bliss to the Commissioner of the Oeneral Land Office, March 
(1. H. L.) 15,1897. (J. L.) 

This case involves the SE. J of section 7, T. 144 N., R. 44 W., Crooks- 
ton latid district, Minnesota; a tract of land lying within the indem- 
nity limits of the Nortbern Pacific Railroad Company, and selected by 
said company on June 17, 1885. 

Oa <lanuary 8, 1895, the local officers rejected Michael Eimstad's 
application to make homestead entry of said tract; he alleging settle- 
ment in the year 1883, and valuable improvements on the land. On 
May 29, 1895, your office affirmed the action of the local officers and 
rejected Eimstad's application, because his declaration of intention to 
become a citizen of the United States was not made until March 7, 
1887, and therefore he acquired no rights to the land applied for, prior 
to June, 1885, the date of the company's application to make selection 
thereof. 

Service of notice of said decision was acknowledged by Eimsta^Us 
attorney on June 13, 1890. On July 28, 1896, he filed his appeal to 
this Department; but he failed to file any proof of service of notice of 
said api>eal upon the Northern Pacific Railroad Company. He was 
notified of said defect on August 22, 1896, in accordance with Rule of 
Practice 82, and was requested to furnish proof of service of notice of 
his appeal, etc., etc., on the opposite party in accordance with the ti3rd 
Rule of Practice. In reply he furnished proof that such service was 
not made until October 12, 1896 — which was more than 120 days after 
he had received notice of the decision appealed from. 

In the cases of Rudolph Wurlitzer, 6 L. D., 315, and Hannon v. 
Northern Pacific Railroad Company, 11 L. D., 48, this Department 



* By departmental order of February 6, 1897| tlie directions for the iusuance of 
patent are modified so as to accord with the decision of Jaly 6, 1895. 



DECISIONS RELATING TO THE PUBLIC LANDS. 231 

held that the sufficiency of aii appeal, if filed in time, is one for the 
appellate authority to pass upon. And that in all cases, whether 
appeals are defective under Rule 82 or incomplete under Eules 8$ 
and 90, all the papers in the case, and especially the appeal itself^ 
should be transmitted, and the letter of transmittal should specifically 
designate wherein the appeal is defective. 

In this case, however, it is unnecessary to direct your office to certify 
the proceedings to the Secretary. It is manifest that notice of th& 
appeal was not served upon the opposite party within the time pre- 
scribed by the Rules of Practice. If the appeal were before the Depart- 
ment it would be immediately dismissed. 

Therefore the application for a certiorari is hereby denied. 



8TVAMP LANDS— IXDEMNITY—ACaS OF 1849 AND 1860. 

State of Louisiana. 

The swampj character of land forming the basis of a claim for indemnity should be 
shown in the same way, and by evidence of the same character, as required to 
entitle the State to lauds under its grant. 

Action on an indemnity list, in which the claim as to some of the tracts is allowed, 
amounts to a rejection of the claim as to the remainder. 

By the act of March 2, 1849, all the swamp lands in the State of Louisiana were 
granted to said State, except lands bordering on streams, rivers, and bayous, 
which were treated by Congress as theretofore reclaimed Arom their swampy char- 
acter, and falling within the provisious of the act of February 20, 1811, which 
gave to said State five per cent of the proceeds of their sale in order to provido 
a fund for their reclamation. 

At the date of the passage of the general swamp land act of September 28, 1850, 
there were no lands in the State of Louisiana subject to the operation of said 
act. as all of the swamp land had, prior thereto, been granted to said State hy 
the special act of 1849; and it therefore follows that the State is not included 
within the indemnity provisions made by the act of March 2, 1855, for said pro- 
visions were specifically limited to States included in the general act. 

Secretary Blis8 to the Commissioner of the Oeneral Land Office, March 
(I. H. L.) 15, 1897. (W. M. W.) 

On the 7th day of January, 1897, your office rejected the application^ 
of the State of Louisiana for indemnity under the acts of March 2^ 
1856 (10 Stat., 634), and March 3, 1857 (11 Stat., 251), for lands sold by 
the United States government after the date of the swamp land grants 
of March 2, 1849 (9 Stat., 352), and September 28, 1850 (9 Stat., 519)» 
and prior to the said acts of March 2, 1855, and March 3, 1857. The^ 
lands in controversy are embraced in twelve lists, numbered from 14 to 
25, of alleged swamp lands as a basis for the cash indemnity claimed. 

These lists were filed in your office, by the agents for the State of 
Louisiana, on various dates from December 2, 1885, to January 16, 189 U 

These lists were not submitted to tlie United States surveyor-general 
for the State of Louisiana for his action, as required by the regulations 



232 DECI8I0KS RELATING TO THE PUBLIC LANDS. 

issued under the grantiug act to said State. Said regulations required 
a personal examination to be made of alleged swamp lands under the 
direction of the surveyor-general by experienced and faithful deputies; 
the work to be doue to his satisfaction; and 

lists of the land falling to the State under the law will be made oat by the agent 
for the State and certified to you by him, and, if satisfied of the correctness of the 
lists, you will so certify and transmit them to this ofiBce. 

See instructions to the surveyor-general of Louisiana, dated April 
18, 1850, Vol. 1, General Land Offiee Record, pp. 46 to 50, inclusive. 

The lists under consideration were filed in your office, and the only 
evidence submitted by the State, in support of the allegation that the 
lands were of the character contemplated by the swamp land grant, is 
the certificate of the State agent, stating that on examination of the 
field notes of sarvey, the lands appear to have been swamp land. The 
certificate does not state that tlie tracts were swamp or overflowed 
lands at the date of the grant. 

The number of tracts involved in your office decision appealed trom 
is about eight hundred and sixty; the great bulk of them were sur- 
veyed long before the swamp grant to the State was made; some were 
surveyed as early as 1807, and many of them during the years 1824, 
1828, and 1830. Said lists, except No. 24 and No. 25, were examined in 
your office, and between January 15, 1886, and May 9, 1888, the State 
was allowed — on the bases of the' tracts found to have been swamp 
lands at the date of the grant-— on lands embraced in said lists, cash 
indemnity to the amount of $49,371.07, and land indemnity to the 
amount of 29,214.25 acres. (See Land Office report for 1891, p. 209.) 
No formal action appears to have been taken, at the time said indem- 
nity was allowed, on the tracts found to have been nonswampy or 
doubtful in character. 

Selections in the several townships embraced in these lists had been 
made and reported to your office by the surveyor-general some thirty 
years before the State agents filed the claim embraced in these lists. 

The lands for which indemnity is asked were sold and patented, and 
at the dates patents issued there were no conflicting claims under the 
swamp-land grant of record. 

Your office held that the issuance of patents, under the existing cir- 
cumstances, raised a presumption against the swampy character of the 
land at the date of the grant; and that you 

do not feel jastiileil in allowing indemnity for said lands under the acts of 1855 and 
1857, except upon the clearest proof that said lands were swamp and overflowed at 
the date of the grant. 

The State appeals. 

» 

The appeal is based upon the claim that the showing made is suffi- 
cient to entitle the State to the indemnity claimed under the acts of 
March 2, 1855 (10 Stat., 634), and March 2, 1857 (11 Stat., 251). If it 



DECISIONS RELATING TO THE PUBLIC LANDS. 233 

be conceded that said acts apply to the State of Louisiana, the conten- 
tiou she makes is not tenable, in the light of the facts hereinbefore 
stated. 

The swampy character of the lands forming the bases for indemnity 
should be shown in the same way and by evidence of the same character 
as was required to entitle the State to lands under its grant. The 
second section of the act of 1855 requires 

due proof, by the authorized agent of the State or States, before the Commissioner 
of the General Laud Office, that any of the lands purchased were swamp lands, 
within the true intent and meaning of the act aforesaid, etc. 

There is absolutely no proof offered by the agent of the State in sup- 
port of these claims. There is no attempt made to conform to the pro- 
visions of the act of 1849 or the regulations thereunder respecting the 
character of the lands claimed as swamp lands. These claims, except 
lists yos. 24 and 25, have been acted on by the Department adversely 
to the claim of the State; and the lands included in lists Nos. 24 and 
25 have been found by your office not to be swampy in character, and 
there is no sufficient evidence before the Department to warrant a 
reversal of your office decision as to lists Nos. 24 and 25. As to lands 
included in the other lists, they were passed upon adversely to the 
State when they were acted on and in part allowed. The failure to 
formally reject such as were not allowed can avail the State nothing 
now, for it necessarily followed that favorable action on a part of the 
lands in such list or lists included negative action on the remainder of 
the tracts included therein. And now, after the lapse of from five to 
ten years, the State can not in reason be permitted to say that said 
tiacts have never been acted on. As to all these lists, except Nos. 24 
and 25, the action heretofore had was final and the doctrine of res 
judicata applies to them. 

In view of the great importance to the government, as well as the 
State, of the questions presented in this claim, it has been deemed 
proper to examine with care the several acts of Congress on the subject 
of granting swamp land indemnity. 

This claim is based upon the act of March 2, 1855. The first ques- 
tion, therefore, to determine is, whether said act has any application to 
the State of Louisiana, t. e., whether said State is now, or ever was, 
entitled to any indemnity in cash or in land under said act. 

In order to determine this question, it is necessary to refer to the 
acts of Congress granting swamp lands to the State of Louisiana, the 
State of Arkansas, and the other States. 

The act of March 2, 1840 (9 Stat, 352), was entitled : <'An Act to aid 

the State of Louisiana in draining the swamp lands therein," and 

provided : 

That to aid the State of Louisiana in constracting tbe necessary levees and drains 
to reclaim the swamp and overflowed Innds therein, the whole of those swamp and 
overflowed Innds, which may be or are found unfit for cultivation, shall be, and the 
same are hereby, granted to that State. 



234 DECISIONS RELATING TO THE PUBLIC LANDS. 

Sec. 2. And he it further enacted, That as soon as the Secretary of the Treasmy 
shall he advised, by the goTernor of Louisiana, that that State has made the neces- 
sary preparation to defray the expenses thereof, he shall cause a personal examina- 
tion to be made, under the direction of the surveyor-general thereof, by experienced 
and faithful deputies, of all the swamp lands therein which are subject to overflow 
and unfit for cultiTation ; and a list of the same to be made oat, and certified by the 
dep'.tties and surveyor-general, to the Secretary of the Treasury, who shall approve 
the same, so far as they are not claimed or held by individuals; and on that approval, 
the fee simple to said lands shall vest in the said State of Louisiana, subject to the 
disposal of the legislature thereof: Providedf however. That the proceeds of said lands 
shall be applied exclusively, as far a8 necessary, to the construction of the levees and 
drains aforesaid. 

Sec. 3. And he it further enacted. That in making out a list of these swamp lands, 
subject to overflow and unfit for cultivation, all legal subdivisions, the greater part 
of which is of that character, shall be included in said list; but when the gpreater 
part of a subdivision is not of that character, the whole of it shall be excluded 
therefrom : Provided, however, That the provisions of this act shall not apply to any 
lands fronting on rivers, creeks, bayous, water courses, etc., which have been sur- 
veyed into lots or tracts under the acts of third March, eighteen hundred and eleven, 
and twenty-fourth May, eighteen hundred and twenty-four : And provided further, 
That the United States shall in no manner be held liable for any expense incurred in 
selecting these lands and making out the lists thereof, or for making any surveys 
that may be required to carrj" out the provisions of this act. 

The act of September 28, 1850 (9 Stat., 519), was entitled: "An Act 
to enable the State of Arkansas and other States to reclaim the ^ swamp 
lands' within their limits," and provided: 

That to enable the State of Arkansas to construct the necessary levees and drains 
to reclaim tbe swamp and overflowed lands therein, the whole of those swamp and 
overflowed lands, made unfit thereby for cultivation, which shall remain unsold at 
the passage of this act, shall be, and the same are hereby, granted to said State. 

Sfx. 2. And he it further enacted, That it shall be the duty of the Secretary of the 
Interior, as soon as may be practicable after the passage of this act» to make out an 
accurate list and plats of the lands described as aforesaid, and transmit the same to 
the governor of the State of Arkansas, and, at the request of said governor, cause 
a puteut to be issued to the State therefor ; and on that patent, the fee simple to said 
lands shall vest in the said State of Arkansas, subject to the disposal of the legisla 
ture thereof: Provided, however, That the proceeds of said lands, whether f^om sale 
or by direct appropriation in kind, shall be applied, exclusively, as far as necessary, 
to the purpose of reclaiming said lands by means of the levees and drains aforesaitt 

Sec. 3. And he it further enacted. That in making out a list and plats of the laud 
aforesaid, all legal subdivisions, the greater part of which is ''wet and unfit for cul- 
tivation,'' shall be included in said list and plats; but when the greater part of a 
subdivision is not of that character, the whole of it shall be excluded therefrom. 

Sec 4. And he it further enacted, That the provisions of this act be extended to, and 
their benefits be conferred upon, each of the other States of the Union in which such 
swamp and overflowed lands, known as (and) doHignated as aforesaid, may be 
situated. 

The act of March 2, 1855 (10 Stat., 034) was entitled: <' An Act for 
the relief of purchasers and locators of swamp and overflowed lands," 
and provided : 

That the President of the United States cause patents to be issued, as soon as prac- 
ticable, to the purchaser or purchasers, locator or locators, who have made entries 
of the public lands, claimed as swamp lands, either with cash, or with land was 



DECISIONS EELATIKa TO THE PUBLIC LANDS. 235 

rsiiits, or -with scrip, prior to the issue of patents to the State or States, as provided 
lor by the second section of the net approved September twenty* -eight, eighteen 
handred and fifty, entitled, ^* An net to enable the State of Arkansas and other 
States to reclaim the swamp landH within their limits/' any decision of the Secretary 
of the Interior, or other officer of the government of the United States, to the con- 
trary notwithstanding: Provided, That iu nil cases where any State, through its con- 
stituted authorities, may have sold or disponed of any tract or tracts of said land to 
any individual or iudividuulH prior to the eutry, sale, or location of the same, under 
tlie pre-emption or other laws of the United States, no patent shall be issued by the 
President for such tract or tracts of land, until such State, through its constituted 
anthorities, shall release its claim thereto, iu such form as shall be prescribed by the 
Secretary of the Interior: And provided farther, That if such State shall not, within 
ninety days from the passage of this act, through its constituted authorities, return 
to the General Land Office of the United States a list of nil the lands sold as afore- 
said, together with the dates of such sale, and the names of the purchasers, the 
patents shall be issued immediately thereafter, ns directed in the foregoing section. 
Sec. 2. And he it further enacted, That upon due proof, by the authorized agent of 
the State or States before the Commissioner of the General Land Office, that any of 
the lands pnrchased were swamp lands, within the true intent and meaning of the 
act aforesaid, the purchase money shall be paid over to the said State or States ; and 
where the lands have been located by warrant or scrip, the said State or States 
shall be authorized to locate a quantity of like amount, upon any of the public 
lauds subject to entry, at one dollar and a quarter per acre, or less, and patents shall 
issue therefor, upon the terms and conditions enumerated in the act aforesaid : Pro- 
Tided, hotcerer, That the said decisions of the Commissioner of the General Land Office 
shall be approved by the Secretary of the Interior. 

The act of March 3, 1857 (11 Stat, 251), provided: 

That the selection of swamp and overflowed lands granted to the several States 
hy the act of Congress, approved September twenty-eight, eighteen hundred and 
fifty, entitled ''An act to enable the State of Arkansas and other States to reclaim 
the swamp lands within their limits,*' and the act of the second of March, eighteen 
handred and forty-nine, entitled '*An act to aid the State of Louisiana in draining 
the swamp lands therein," heretofore made and reported to the Commissioner of the 
General Land Office, so far as the same shall remain vacant and unappropriated, and 
not interfered with by an actual settlement under any existing law of the United 
States, be and the same are hereby confirmed, and nhall be approved and patented 
to the said several States, in conformity with the provisions of the act aforesaid, as 
soon as may be practicable after the passage of this law : Prorided, hotverei', That 
nothing in this act contained shall interfere with the provisions of the act of Con- 
gress entitled ''An act for the relief of purchasers and locators of swamp and over- 
flowed lands," approved March the second, eighteen hundred and fifty- five, which 
shall be and is hereby continued in force, and extended to all entries and locations 
of lands claimed as swamp lands made since its passage. 

To save space and repetition, these several acts will hereafter be 
referred to, respectively, as the Louisiana act, the Arkansas act, the 
indemnity act, and the confirmatory act. 

Iu construing a statute a court may properly refer to the conditions 
of persons and things to be ailected by such act, as well as the state of 
things as they appeared to the legislature at the time the enactment 
was considered. See Aldridge v. Williams, 3 How., 9; United States 
p. Union Pacific E. E. Co., 01 U. S., 72; District of Columbia v. Wash- 
ington Market Company, 108 U. S., 243 ; Piatt v. Union Pacific E. E. 
Co., 99 U. S., 48. 



236 DECISIONS RELATING TO THE PUDLIC LANDS. 

This has been applied by the Department. See Towiisite of EiBg- 
fisher r. Wood, 11 L. D., 330; Grandin Bros, et al^ 18 L. D., 459. 

Applying this rule to the Louisiana act, at the time it was passed the 
southern jwrtion of the State was largely, if not principally, low, flat, 
swampy, marshy iu character; in some instances, esjiecially towards 
the inouth of the Mississippi river, much the greater part of the land, 
a little back from the rivers, lakes and bayous, was in fact lower than 
the beds of such streams, or other bodies of water. From the northern 
boundary of the State to its center there was a strip of land from fifty 
to one hundred miles wide on the west side of the Mississippi river, 
which lands were likewise low, swampy and marshy in character. It 
was stated in the House of Representatives, by Mr. Bowlin, when the 
Louisiana act was under consideration: ^^that the precise amount of 
swamp lands in the State was 5,429,000 acres, as reported by the sur- 
veyors." See Congressional Globe, 30th Congress, 2d Session, p. 591. 
On the day the act passed the House, Mr. Harmanson, a representative 
from the State of Louisiana, stated during the debate, among other 
things: 

That the State of Louisiana, and the ciiizenB of that State, had constructed about 
fourteen hundred miles of levee, to keep out the waters of tlie river from the low 
lands. This work had been done nt a cost of eight miUions of dollars, as estimated 
by the committee on public lands; but which, in fact, had cost at least twenty mil- 
lions. Whnt had been accomplished by that workf Three millions five hundred 
thousand acres of land, which were before unfit fur cultivation, had been reclaimed 
for the benefit of the general government. This vast amount of rich land, so 
reclaimed by Louisiana levees, had been sold, and the government had pocketed 
their proceeds. 

The report of the Commissioner of the General Land Office stat«d that there were 
two millions two hundred thousand acres of swamp lands now iu Louisiana, and he 
(Mr. H.) believed that one million of acres of these lands could be reclaimed. It 
would require five miUions of dollars to accomplish this work, and the State of Loui- 
siana was obliged to do this work, because it was required by the health of the 
country But the State of Louisiana was compelled by the force of cir- 
cumstances to reclaim these lands ; and the on!}' question was, whether the general 
government would give them to tho Stated by way of compensation fur the cost of 

reclaiming them Would the gentleman refuse to be just to Louisiana, for 

fenrof receiving injustice at the hands of other States f .... 

He urged again the consideration of the claim of his State upon the general gov- 
emraent, because she had already reclaimed three and a half millions of acres of the 
public lands; and he claimed the passage of the bill as a debt due from the general 
government. 

Mr. Brodhead said he had but a word to say in explanation of the bill. In 1829 
the officers of the government reported 5,429,260 acres as the whole amount of the 
great swamp lands in the State of Louisiana. On the IGth of April last, the Com- 
missioner of the General Land Office reported that these swamp lands, at that time, 
had been reduced to 2,246,075 acres. It wus apparent, therefore, that, since the year 
1829, the State and people of Louisiana, by the levees which they had thrown up, 
had reclaimed and enabled the general government to throw into the market very 
large bodies of rich nnd valuable land 

This large body of government land had been brought into market since the year 
1829 at the expense of the people of Lonisinn.-i. 

See Cong. Globe (No. 92), 30th Cong. 2d Sess. p. 592. 



DECISIONS RELATING TO THE PUBLIC LANDS. 237. 

By an act of the legislature of Looisiaua, of February 7, 1829 (see 
Session laws for that year, p. 76), it was provided by section 1: 

That thronghont all the portion of the State watered by the Mississippi and the 
bayous running to and from the same which are settled, where levees are necessary 
to confine the waters of that river, and to shelter the inhabitants against the inunda- 
tioDB, the said levees shall be made by the riparian proprietors in the proportions 
and at the time hereinafter prescribed. 

The second section prescribes the height and character of the levees. 
Other sections of the act specifically deal with the subject of levees, and 
define the duties of the owners of lands on the banks of the Mississippi 
and bayous running to and from it, respecting the making of levees, 
roads, etc. These provisions were carried forward and are to be found 
in the Bevised Statutes of said State. See Eevised Statutes Louisiana, 
1856, p. 481 et seq. 

With these aids, and the plain language of the act itself, there is no 
difficulty in arriving at the jmrpose and intention of Congress in pass- 
ing it. 

The act was clearly a grant in presenti, giving to the State '-the 
whole of those swamp and overflowed lands,'' which were at the date of 
the act unfit for cultivation. The words used, <^ shall be, and the same 
are hereby, granted to that State," clearly import a present grant, and 
had the eftect of a conveyance at the date of the act; thereafter the 
only thing that was required to be done was the identification of the 
land. The second section provided the manner that such identification 
shonld be accomplished, and when accomplished << the fee simple to said 
lands shall vest in said State of Louisiana;" no patent was required or 
necessary to complete the State's title to the lands granted. The first 
proviso in section 3 of the act carves out of the grant '*any lands front- 
ing on rivers, creeks, bayous, water courses," etc., for the very reason 
that Congress must have understood that all such lands had been 
reclaimed either by the riparian owners or the State under State laws; 
and, therefore, such lands were not in fact swamp or overflowed at the 
date of the act. 

The Arkansas act granted to that State ^^the whole of those swamp 
and overflowed lands made unfit thereby for cultivation," which 
remained unsold at the date said act was passed. It was clearly a 
grant inpresenti, taking efiect as soon as the lands could be identified 
by listing and platting as specified in the act. It differed from the 
Loaisiana actin that the Secretary o'f the Interior was required to cause 
to be issued a patent to the State for said lands; ^*and on that patent, 
the fee simple to said lands shall vest in the said State of Arkan^^as," 
and in other respects. But in this opinion it is not material to discuss 
the provisions of said act, except the 4th section, which extended the 
provisions of said act to, and conferred its benefits upon, **each of the 
other States of the Union in which such swamp and overflowed lands, 
known as (and) designated as aforesaid, may be situated." The right 



238 DECISIONS RELATING TO THE PUBLIC LANDS. 

of Louisiana to auy swamp land indemnity depends entirely upon 
whether this section applies to said State, fortheindemuity actof 1855, 
under which Louisiana makes the claim herein, specifically refers to the 
Arkansas act, and clearly and distinctly confines the indemnity it pro- 
vides to such States only as were included in the Arkansas act In 
this particular the language of the indemnity act is so plain and une- 
quivocal that it can not bo misunderstood. 

Tlie confirmatory act of 1857 referred to the Louisiana and Arkansas 
acts, and simply confirmed to the several States the swamp and over- 
flowed lands theretofore selected and reported to the Commissioner of 
the Genera] Land Office, so far as the lands remained vacant and 
unappropriated, and when such selections did not interfere with actual 
settlement claims under any existing law of the United States. The 
proviso to said act continued in force and extended the indemnity act 
to all entries and locations of lauds claimed as swamp lands since its 
passage. The effect of this proviso was to simply keep in force the 
indemnity act of 1855 as to the subject matter as applied to the States 
included therein. 

Adverting to the 4th section of the Arkansas act, for the purpose of 
determining whether or not it embraced tlie State of Louisiana, it 
seems proper to refer to the construction heretofore placed upon it by 
the Department. 

On December 23, 1851, Secretary Stuart held that the Louisiana and 
Arkansas acts were not to be construed in pari materia^ and that: 

The act of March, 1849, has reference to Louisiana alone, and requires that the 
selections should be made under the direction of the surveyor-general, at the expense 
of tlie State of Louisiana entirely, and after the governor of that State should have 
informed the Secretary of the Treasury that the necessary preparations to defray 
those expenses had been made by the State. The provision in the act of September, 
1850, is entirely different; for it makes it the duty of the Secretary of the Interior to 
muke out lists and plats of the lands thereby granted, and to transmit the same to 
the governors of the States. See 1 Lester, 549, 550. 

On January 14, 1856, Secretary McClelland held that: 

The act of 1849 is not'merged in the act of 1850, but each is to be executed accord- 
ing to its special tenor and provisions, the latter being merely cumulative, and 
embracing land which was excepted from the operation of the former. lb. 554. 

On February 12, 1886, your ofSce refused to allow the State of Lou- 
isiana indemnity for swamp lands sold in said State between March 2, 
1840, and September 28, 1850. Oji appeal to the Department doubts 
arose as to the proper construction of the swamp land grants of 1849 
and 1850, and also theindemnity actof 1855 and the confirmatory act of 
1857, and the matter was referred to the Attorney General for his opin- 
ion. On January 11, 1887, Attorney General Garland submitted his 
opinion, in which, after referring to the Louisiana and Arkansas acts, 
he said : 

This last act was substantially a re-enactment of the act of the 2d of March, 1849, 
so far as Louisiana was concerned, with an extension of the grant in that act so as 



DECISIONS EELATINO TO THE PUBLIC LANDS. 239 

to inclnde the lands which had been excluded by the exception in tl^e former enact- 
ment, tk» to which it was a new and sabstantive grant on the 28th of September, 1850. 
Both of these act<8 were grants in prcpsenii by which, from their respective dates, the 

title to the lands therein described became vested in the several States 

These definitions of swamp lands in the acts of 1849 and 1850 are substantially the 
same. Therefore, all swamp lauds granted by the act of 1849 would be within the 
intent and meaning of the words '* swamp lands " in the act of 1850. The considera- 
tion for the grants in the acts of 1849 and 1850 was the same. The errors committed 
by the officers of the United States against both grantees were the same in effect. 
The wrongs done to both classes of purchasers were the same. 

Mr. Garland also refers to an opinion rendered by Attorney General 
Speed (11 Opins., 472, and 3 L. D., p. 396) as supjwrting his views. See 
Attorney General Garland's opinion, 5 L. D,, 464, et seq. 

By reference to Attorney General Speed's opinion fll Opins., 467 to 
473, inclusive), it will be observed that said opinion related exclusively 
to the right of the State of Iowa to swamp land indemnity, and involved 
tlie construction of the acts of March 2, 1855, and March 3, 1857. 
1 here was no question but what Iowa was included in the Arkansas 
act of 1850, The only bearing General Speed's opinion could possibly 
have in determining this case is found in that portion wherein he dis- 
cusses the proviso in the confirmatory act of 1857. In so far as he 
construed said proviso he seems to have held that it only amounted to 
a legislative declaration that the act of 1855 is " hereby re-enacted,'' 
having the same ettev.t as if it had been in terms repeated and re-en- 
acted on tho third of March, 1857. 

The State of Louisiana (3 L. D., 396), referred to by Attorney Gen- 
eral Garland, was a fonnal afQrmanee by Secretary Teller of a judg- 
ment of Commissioner McFarland, in which the Commissioner held 
that the State of Louisiana was entitled to indemnity. The decision 
of the Secretary does not discuss the question as to the rights of the 
iState. He simply stated that he saw no reason for excluding the State 
of Louisiana from the benefits of the acts of 1855 and 1857. The Com- 
missioner's decision is set out at length, in which it is said, inter aliaj 
that: 

It i8 trae that the act of 1849 is not specially mentioned in the act of Sept<embeT 
28, 1850, or of March 2, 1855, bnt it is to he presumed from the language of these 
»ct8, in connection with that used in the act of March 3, 1857, which includes Lou- 
ibiana, that it was the intention of Congress to confer the benefits contained in the 
acts of 1850 and 1855 to all the States over which the swamp land grant had been 
extended, if not, why was Louisiana included in the confirmatory act of March 3, 
1857, which act places her on an equal footing with the other States. 

It 18 claimed by the State that the act of February 20, 1811 (2 Stat, 
611-043), has no bearing on the questions involved in the case. The 
5th se<;tion of said act provided : 

That five per centum of the net proceeds of the sales of lands of the United States, 
after the first day of January, shall be applied to laying out and constructing pub- 
he roads and levees in the said State, as the legislature thereof may direct. 

Section 1 of the act of September 4, 1841 (5 Stat., 453), provided that 



240 DECISIONS RELATING TO THE PUBLIC LANDS. 

the States of Ohio, Indiana, Illinois, Alabama, Missouri, ^Mississippi, 
Louisiana, Arkansas, and Michigan -were to be ])aid ten per cent of the 
net proceeds of the sales of public lands therein, irithout in any man- 
ner diminishing the sam theretofore granted to any of said States. 
Section 2 of said act provided that, after deducting said amount and 
all expenses connected with the survey, sale, etc., of said lands, sold 
after the 21st day of December, 1841, the net proceeds were to be 
divided among the twenty-six States of the Union, the District of Co- 
lumbia, and the Territories of Wisconsin, Iowa and Florida, according 
to thi-ir respective population, as shown by the census of 1840. By tlie 
8th section of said net each of the States named in the first section was 
granted 500,000 acres of public lands, and the same amount for each 
new State thereafter admitted into the Union. Section 9 required the 
proceeds of the lands granted by section 8 to be faithfully applied to 
objects of internal improvements within the respective States, namely: 
*'Road8, railways, bridges, canals, and improvement of water-courses, 
and draining of swamps." 

While it may be true that these acts do not directly bear on the 
material questions involved, yet there can be no question but what 
they may properly be considered as aids in arriving at the purpose of 
Congress in passing the Louisiana act of 1849. 

In the appeal great stress is laid upon the opinion of Assistant At- 
torney General McCammon, in State of Ohio (3 L. D., 571), and it is 
claimed by the State that it was upon the authority of said opinion that 
the first indemnity ever allowed the State of Louisiana was on Decem- 
ber 28, 1885. Said opinion refers exclusively to the Arkansas act, the 
acts of 1855 and 1S57 -, it makes no reference to the Louisiana act, and 
can not be accepted as an authority in determining the matter herein 
involved. 

The Louisiana act was a special act in that it only applied to the State 
of Louisiana. It granted to said State all the swamplands therein, 
except lands bordering on streams, rivers, and bayous, which it is clear, 
in view of the debates in Congress, and the Statutes of Louisiana, here- 
inbefore referred to, were not understood to be or regarded as swamp 
lands. The exception seems to have been made for the very purpose of 
protecting the United States from claims thereafter made by the State 
for the lands embraced in its terms. Said exception refers to lands 
surveyed under the act of 1811, which gave to the State five per cent 
of the proceeds of their sale for the very purpose of reclaiming them by 
draining and levees. This construction accords with sound reason, 
and under it every part of the act is harmonized. Said act was special 
and local, in that it only applied to the State of Louisiana. The United 
States having granted, in contemplation of law, all the swamp lands in 
Louisiana, there was no swamp land in that State when the Arkansas 
act was passed, and in the very nature of things the Arkansas act did 
not apply to any lands in the State of Louisiana. The Arkansas act 



DECISIONS RELATING TO THE PUBLIC LANDS. 24t 

was a general act. In construing said acts, the maxim of generalim 
^cialibus non derogant applies. Endlich on the Interpretation of 
Statutes, section .223, states it as follows : 

It is bat a parttcalar applicatiou of the general presumption against an intention 
to alter the law beyond the immediate scope of the statute, to say that a general 
act is to be constrneil ss not repealing a particular one, that is, one directed toward 

a 9pecial object or $pecial class of objects It is usually presumed to have only 

general eaees in view, and not particular cases which have been already otherwise 

provided for by the special act Having already given its attention to th& 

particular subject, and provided for it, the legislature is reasonably presumed net 
to intend to alfer that special provision by a subsequent general enactment, unless 
that intention is manifested in explicit language or there be something which shows 
tliat the attention of the Legislature had been turned to the special act, and that 
the general one was intended to embrace the special cases within the previous one; 
or Bomething in the nature of the general one making it unlikely that an exception 
was intended as regards the special act. The general statute is read as silently 
excluding f^om its operation the cases which have been provided for by the special 
one. 

Applying this rule to the 4th section of the Arkansas act, it is per- 
fectly clear that Congress did not intend that said section should apply 
to the State of Louisiana. The whole subject of swamp lands iu that 
State had been disposed of in the prior special act, and therefore the 
Arkansas act should be read as silently exclading from its operation 
the State of Louisiana. This conclusion must necessarily result in 
denying the right of Louisiana to any indemnity, for, as before sug-* 
gested, the indemnity act of 185.> specifically limits its provisions to 
such States as were included in the Arkansas act. 

The confirmatory act of 1857 extended the act of 1856 and confirmed 
selections of swamp lands made by all the States, and in clear lan- 
guage included Louisiana in its confirmatory provisions, but it does 
not follow that in the matter of indemnity it had any reference to said 
State. Louisiana under the act of 1849, in common with Arkansas and 
other States under the Arkansas act, had made selections under the 
respective laws granting swamp land, and Oongress by the act of 1857 
confirmed said selections. Sach confirmation had nothing to do with 
mdemnity; it dealt exclusively with State selections. Thefa-ct that 
the State of Louisiana is referred to specifically in the matter of selec- 
tions in the act of 1857, and not so referred to in the indemnity act, is 
an additional reason for believing that Congress did not intend to 
include Louisiana in the matter of indemnity. 

Taking into consideration the conditions that existed in the State of 
Lonisiana, as shown by the debates in Congress and the statutes of that 
State, at the time the Lonsiana act was passed, and the nature and 
character of the act itself, there seems to be no escape from the conclu- 
sion that Congress intended by said act to convey to said State all the 
swamp lands in said State, and thereby finally and forever settle every 
question in respect to swamp lands, so far as that particular State was 
10671— VOL 24 16 



242 DECI810N8 RELATING TO THE PUBLIC LANDS. 

concerned; tliat the lands excepted in said act were clearly understood 
hot to be swamp land in character, but redalmedy in so far as they had 
been swampy. 

It is equally clear, in the light of reason and the authorities, that said 
State was not intended to be included in the Arkansas act, nor in the 
indemnity act of 1855; that the act of 1857 only operated in said State 
to confirm to her the selections theretofore made under her grant 

It follows that the State's application must be, and it is hereby, 
rejected and dismissed. 



OKLAHOMA LAND^-SECTIOX 16, ACT OF MABCH 8, 1891. 

BoNNETT V. Jones (On Review). 

The proTifiion in section 16, act of March 3, 1891 (26 Stat., 989), that the landg 
specified therein shall be opened to settlement '* under the proyisions of the 
homestead and townsite laws," shonid be construed to mean that said lands are 
to be opened to settlement under the homestead and townsite laws goTeming the 
disposition of lands in Oklahoma, and not operating to repeal the provision con- 
tained in section 20, act of May 2, 1890, disqualifying as ' homesteaders all per- 
sons owning one hundred and sixty acres in any State or Territory, and applicable 
to all lands in Oklahoma. 

Secretary Bliss to the Commissioner of the General Land Office^ March 
(I. H. L.) i5, 1897. (E. M. R.) 

This case involves the SE. \ of Sec. 6, T. 16 K, R. 7 W., Kingfisher 
land district, Oklahoma Territory, and is before the Department 
upon motion for review, by James Jones, of departmental decision of 
December 23, 1896 (23 L. D., 547), in which was awarded the land in 
controversy to William J. Bonnett. That decision held that Jones was 
the owner of 160 acres of land at the time of the hearing in the case, 
and that under the law snch ownership deprived him of the right of 
entry opon land situated in Oklahoma Territory. 

By act of Congress of May 2, 1890 (26 Stat., 81, page 91 thereof, sec- 
tion 20), it is provided : 

And no person who shall at the time he seized in fee simple of one hundred and 
sixty acres of land in any State or Territory, shall hereafter he entitled to enter land 
in said Territory of Oklahoma. 

By act of Congress of Marob 3, 1891 (26 Stat., 989, page 1026 thereof, 
section 16), it is provided: ' 

That whenever any of the lands acquired hy either of the three foregoing agree- 
ments respecting lands in the Indian or Oklahoma Territory shall by operation of 
law or proclamation of the President of the United States be open to settlement 
they shall be disposed of to actual settlers only, under the provisions of the home 
stead and townsite laws (except section twenty-three hundred and one of the 
Be vised Statutes of the United States which shall not apply). 

By act of Congress of March 3, 1891 (26 Stat., 1095, page 1098 thereof; 
nnder the head of section 5), it is provided, in the amendment of sec- 



DECISIONS RELATING TO THE PUBLIC LANDS, 24? 

tion 2289 of the Bevised Statutes, after setting forth the qualifications 
of entry — 

bnt no person who is the proprietor of more than one hundred and sixty acres of 
h&nd in any State or Territory, shall acquire any right nnder the homestead law. 

In the decision sought to be reviewed it was held that the act last 
referred to could not under any construction of law known to the 
courts, be held to aftect the class of lands mentioned in the act of May 
2, 1890 {supra)j because the one is general and the other special. 

Counsel for the i>etitioner contends that the act of March 3, 1891 
(2G Stat.. 989), does serve to except these lands from the abridgment 
of the right of entry contained in the act of May 2, 1890, because it 
was nnder one of the three agreements mentioned in this act that the 
Cheyenne and Arapahoe lands were thrown oi)en to settlement, and 
under section 16 {supra) saiil lands were thrown open to settlement 
nuder the provisions of the general homestead law. 

Section 20 of the act of May 2, 1890, as has already been shown, 
contains an absolute and unqualified prohibition to any one who owned 
160 acres of land in any State or Territory from thereafter acquiring 
title under the homestead law to any land in the Territory of Oklahoma. 
That was a general prohibition applicable to all lands within the Terri- 
tory of Oklahoma. And as the Cheyenne and Arapahoe reservation 
is now a portion of that Territory, it is applicable to lands which were 
formerly in such reservation, as much as to any other lands within its 
territory. 

Bepeals by implication are not favored by the courts; and a subse- 
quent act will not be held to repeal the provisions of a former act unless 
necessitated by the clear intent of Congress; in such instances as where 
there is a clear conflict between the meaning and scope of the acts. 
No snch necessity is here presented. Both acts can stand. 

The act of March 3, 1891, setting forth that these lands are opened 
to settlement << under the provisions of the homestead and townsite 
laws,^ can be and should be construed to mean that the land within 
the Cheyenne and Arapahoe reservation is open to settlement under 
the homestead and townsite laws pertaining to the Territory of Okla- 
homa. In this manner both acts are given force and effect without 
such construction being inharmonious with the true nieanlng of both. 

The motion for review is therefore denied. 



244 DECISIONS BELATING TO THE PUBLIC LANDS. 

PRACTICE— CERTIORAKI— APPEAL. 

Sbs r. See. 

An application for a writ of certiorari will be denied where the applicant has not 
previously sought relief through appeal, as provided in the Rules of Practice. 

Secretary Bliss to the Commissioner of the General Land Office, March 
(L H. L.) 15y 1897. (J. L. McC.) 

Clay See has filed an application for an order directing joar office 
to transmit to the Department the record in the case of Frank Y. S«e 
against said Clay See, in tbe matter of the simnltaneons applications 
of the parties named to enter certain lands — the particular tract in 
conflict being the N W. i of the SW. J of Sec. 34, T, 6 K, B. 20 W., 
Missoula land district, Montana. 

The applicant complains of the decision of your office, dated October 
22, 189G, a copy of which is filed with his application. 

The local officers had recommended that Clay See's homestead entry 
be canceled in so far as it embraced the forty acres in controversy, aud 
that Frank Y. See be permitted to file thereon. 

Clay See filed an appeal to your office, alleging that it was error on 
the part of the local officers — 

1. To recommend the homestead entry of Clay be canceled as to the NW. ^ of the 
SW. i of Sec. 34, T. 5 N., R. 20 W., and that Frank V. See be allowed to file upon 
the same ; 

2. Not to have recommended that said homestead entry remain intact, and that 
said contest of Frank V. See be dismissed. 

Amotion was made to dismiss said appeal, on the ground that it failed 
to set forth specific points of exception to the decision appealed from^ 
as required by the Eules of Practice. 

This motion was granted; and your office, proceeding to consider tlie 
case under Bule 48 of Practice, held the decision of the local officers 
final as to facts, concurred with tbem as to. their conclusions of law, 
and directed the cancellation of Clay See's entry as to the fort^' acres 
in conflict — ^in case the plaintiff applied to perfect his application there- 
for into an entry. 

It does not appear from anything in the application or the accom- 
panying papers that Clay See has ever filed an appeal from said adverse 
decisiou of your office. 

The right of proceeding by certiorari was instituted as a remedy for 
any injustice done by your office where the right of appeal therefrom 
does not exist (Florida Navigation Co. v. Miller, 3 L. D., 324-^; George 
K. Bradford, 4 L. D., 269; and many cases since); or where appeal has 
been filed but the right denied by your office (Cedar Hill Mining Co., 
1 L. D., 628, and many cases since). But the Department will not 
countenance, upon the grounds appearing by this record, a resort to 
the extraordinary remedy of certiorari where the applicant has not 



DECISIONS DELATING TO THE PUBLIC LANDS. 245 

previously sought relief through the onliuary method provided by the 
Rules of Practice, — to wit, by appeal (Smith v, Noble, 11 L. D., 668; 
Spratt r. Edwards, Id L. D., 290; and many other cases). 
The application is denied. 



JUI>GMEXT— PrNT>ING OF FACTS— CORRECTION OF ERROR. 

Florida Railway and Navigation Co. v. Hawlet. 

On the application of a party in interest the Department may reform ite finding of 
facts in a previous decision, so that it may be in accord with the record in ihe 
case, ^vhere snch action seems requisite for the protection of the applicant, 
though the judgment as rendered may not be affected thereby .^ 

Secretary Bliss to the Commissioner of the General Land Office^ March 
(I. H. L.) 15, 1897. (F. W. 0.) 

A motion has been filed on behalf of Chauncey I. Hawley to correct 
an alleged error in the finding of facts contained in departmental deci- 
sion of March 21, 1894 (18 L. D., 236). In said decision it was held 
(syllabus) : 

A tract of land withdrawn for indemnity purposes under a rftilroad grant, and 
included in a descriptive list of lands announced for public sale nnder a subsequent 
proclamation of the President, that excepts therefrom all lao^ '' reserved for rail- 
road purposes'^ can not be regarded as '^ offered"; and a ]if irate cash entry of a 
tract occupyin<^ such status is void, and not subject to equilAble oonflrmation. 

Said decision was upon a motion filed for a review of departmental 
decision of May 20, 1889 (not reported), in which it was held that the 
private cash entry of Chauncey I. Hawley, made April 27, 1882, for 
certain tracts in the Gainesville land district, Florida, might be sub- 
mitted to the board of equitable adjudication for confirmation. 

The tracts covered by said entry are within the indemnity limits of 
the grant made to the State of Florida by the act of Congress approved 
May 17, 185G (IL Stat., 15), to aid in the construction of a railroad from 
Amelia Island to Tampa Bay and Cedar Keys. The lands were in a 
state of reservation at the date of the allowance of Hawley's entry, 
and it was upon this ground that Hawley's entry was held to have 
been void and not capable of confirmation. The holding to this effect 
will be found in that portion of the opinion reported on pages 240 and 
241 of the said land decisions, wherein it was held: 

There being no authority to offer the tract in controversy, it must be considered 
as having never been offered, and, under the rulings of the court and of the Depart- 
ment in the cases above cited, the private cash entry of Hawley was without author- 
ity and void and can not be confirmed by the board of ecinitable adjudication. 

This would seem to have effectually disposed of any rights under 
Hawley's entry; the opinion proceeds, however — 

It farther appears that the company applied to select this tract prior to the revo- 
cation of the withdrawal, and that the api>Ucatiou was refused because of the entry 



246 DECISIONS KELATING TO THE PUBLIC LANDS. 

of Hawley. The company appealed from the action of the local officers, rejecting 
said list^ bat it was afterwards discovered that the local officers had neglected to 
place the selections of record, and yonr office was asked to correct that error, which 
was refused. 

The finding complained of is that <*the company appealed from the 
action of the local officers, rejecting said list." 

WhUe the decision was in no wise predicated ai)on this finding^ and 
would not be affected by its elimination or change, yet as it is urged 
that said finding may prejudice any future rights desired to be asserted 
by Hawley in the courts, I have deemed it prox)er to inquire sis to the 
correctness of the same, and find from the records of the land office, 
gathered from the report made by your office in response to a call from 
this Department, that, as a matter of fact, the company did not appeal 
from the action of the local officers in refusing to accept its list No. 2, 
covering this laud, which list was tendered at the local office Jane 1, 
1887. The finding made in said departmental decision, that the com- 
pany appealed from the action of the local officers, rejecting its list 
covering the tract embraced in Hawley^s purchase, is error and is set 
aside. 

In answer to the motion it is urged on behalf of the Florida Central 
and Peninsular Railroad Company, the present claimant under said 
grant, that tbe finding should not be made that the company did not 
appeal, without a detailed statement of the several actions taken by 
your office and the local officers in lelation to selections on account of 
this grant, which it is claimed will show that the selection in question 
was simply held in abeyance. 

As before stated, the decision of the Department was not predicated 
upon, nor influenced by, the finding complained of, which, it is clearly 
shown, was an erroneous finding; and the same having b^n set aside, 
it seems to be unnecessary to further complicate the record in said 
case by any finding of facts not necessary to the conclusion reached in 
said opinion. 

The motion and accompanying papers are herewith returned for the 
files of your of^ice. 

REPAYMENT-ASSIGNEE— MORTGAGEB. 

California Mortgage Loan and Trust Co. 

No right of repayment is acquired hy an assignee whose interest in the land is not 

obtained until after the cancellation of the entry. 
The right of assignees to repayment is limited to assignees of the land, and does not 

extend to one holding an assignment of the claim for the money paid on the entr^*. 
A mortgagee is not an a'^signee, within the intent and meaning of the act providing 

for repayment, if the mortgage is merely a lien on the land. 
On application for repayment by an entryman he mnst show that the land is five 

from incumbrance. 

Secretary Bliss to the Commissioner of the General Land Office^ March 
(L H. L.) 15, 1897, (J. L. McC.) 

The California Kortg^gBy Loan and Trust Company has appealed 
from the decision of your otiHce, dated November 19^ 1895, denying its 



DECISIONS RELATING TO THE PUBLIC LANDS. 247 

application for repayment of the purchase money paid by William B, 
Stewart for the land embraced in his pre-emption cash entry, 'No. 3640| 
for the NE. i of Sec. 32, T. 4 S., E. 1 E., Los Angeles land district, 
California. 

Said entry was canceled on March 31, 1890, because the laud had 
been, by executive order of June 19, 1883, Teserved from entry, for the 
benefit of the Mission Indians. 

On November 27, 1893, the company above named, claiming as mort- 
gagee, applied to have the entry reinstated. The application was 
denied by your office, on December 8, 1893; and on appeal the Depart- 
ment, on April 18, 1895« affirmed said decision. (See 307 L. and B., 
150.) 

Thereupon the company applied for repayment of the purchase 
money. With said application the company filed a certified copy of 
the receiver's receipt; the affidavit of the vice-president and general 
manager of the company, setting forth that said company, on July 28, 
1889, loaned to said Stewart the sum of one thousand dollars, receiving 
as security for such loan a mortgage on the land; a grant deed, dated 
May 4, 1894, from Stewart to tlie company (duly recorded); a quit- 
claim deed from the company to the United States; an assignment by 
Stewart to the company of all right, title, and interest in the money 
paid by him to the United States for the land in controversy; and 
other documents. 

Tour office held that, inasmuch as the deed from Stewart to the 
company was subsequent to the cancellation of the entry, it gave 
the company no claim to repayment of the purchase money paid by 
Stewart. 

It clearly appears that Stewart's entry was "erroneously allowed,^* 
within the meaning of Sec. 2 of the act of June 16, 1880 (21 Stat., 287); 
the only question for consideration is, whether the repayment should 
be made to the California Mortgage, Loan and Trust Company. 

It is well settled that no right of repayment is acquired by an 
assignee whose interest in the land is not obtained until after the can- 
cellation of the entry. ( Adolph Emert, 14 L. D., 101 ; Albert G. Craven, 
id., 140; Alpha L. Sparks, 20 L.D., 75.) Also that the right of repay- 
ment is restricted to assignees of the land, and does not extend to 
persons holding an assignment of the claim for the money paid on the 
entry. (Instructions of [N^ovember 2, 1895, 21 L.D., 306.) 

The decision of your office correctly held that the showing made by 
the company relative to the existence of said mortgage was unsatis- 
factory. Such evidence may, however, be hereafter furnished by sup- 
plementary proof. 

The question then remains for consideration, whether, in case such 
satisfactory evidence should be furnished, the company would be 
entitled to repayment f 

Tbe Department has repeatedly held that where a mortgage is merely 
a hen on the land, the mortgagee is not an assignee of the entryman 



^48 DECISIONS BELATINO TO THE PUBLIC LANDS. 

ifitliin the meaning and intent of the act providing for repayment 
(Alonzo W. Graves, 11 L.D., 283) Emma J. Campbell, 15 L.D., 392.) 

By the Civil Code of California (Sec. 2920), it is declared that a mort- 
gage "is a contract by which specific property is hyiwthecated for the 
performance of an act, without the necessity of a change of iK>s8e8sion.'' 
Sec. 2923: — '*The lien of a mortgage is special, unless 'otherwise 
expressly agreed, and is independent of possession." Sec. 2926: — '^ A 
mortgage is a lieu upon everything that would pass by a grant of the 
property." And Sec*. 2927 declares that a mortgage does not entitle a 
mortgagee to possession. 

The California Mortgage, Loan and Trust Company not being, under 
departmental rulings, an assignee within the meaning of the act of 
June 16, 1880, repayment cannot be made to it; and your action in 
denying its application is therefore approved. 

The title to the land was, at the date of the cancellation of the entry, 
in the entryman Stewart, subject only to the lien of the mortgage — ^if 
such mortgage in fact existed, as alleged; and in view thereof, repay- 
ment, if allowed at all, must be made to him. But before this can be 
done he will have to secure a release of the mortgage, by payment, 
relinquishment, or otherwise. Upon a proper application by the entry- 
man, showing such release, I see no good reason why repayment may 
aot be allowed. 



OKLiAHOMA L.AKDS-QUAILJFICATIONS OF H09(£ESTEAI>£B. 

Mason v. Cromwell. 

The limitation in section 20, act of May 2, 1890, of the right to make homestead 
entry in Oklahoma, to persons who are not '* seized in fee simple of one hundred 
and sixty acres of land/' disqualifies one who owns a ''quarter section/' entered 
as snch, though the area of the tract thus owned may fall short of one hundred 
and sixty acres hy a small fraction, as shown by the field notes of survey. 

A transfer of land owned hy an intending homesteader will not operate to reliere 
him ft'om the disqualification imposed by said section, if it appears to have not 
been made in good faith, but for the purpose of evading the statutory inhibition. 

Secretary Bliss to the Commissioner of the General Land Office, Mareh 
(I. H. L.) 15y 1897. (C. J. G.) 

The land involved in this controversy is the 8W. J of Sec. 20, T. 23 
N"., K. 6 W., Enid land district, Oklahoma. 

FuUerton C. Cromwell made homestead entry of the above described 
tract on October 27, 1893. 

A few days thereafter Calvin F. Mason filed an application to make 
homestead entry of said land, alleging settlement thereon October 13, 
1893. 

A bearing was duly had January 24, 1894, on the issne of prior 
settlement. 



DECISIONS RELATING TO THE PUBLIC LANDS. 249 

The register rendered decision in favor of Mason, finding that he was 
the prior settler and a qualified entryman. He therefore recommended 
that Cromwell's entry be held for cancellation. 

The receiver found in favor of Cromwell, on the ground that Mason 
was disqualified to make entry by reason of his ownership of one hun- 
dred and sixty acres of land in the State of Kansas. He accordingly 
recommended that Cromwell's entry remain iutact. 

Both parties appealed, and your office, under date of May 22, 1895, 
sustained the decision of the receiver and dismissed the contest. . 

Mason has appealed to this Department, and in his said appeal three 
propositions are submitted: (1) That he was not the owner of one 
hundred and sixty acres of land at the time of his settlement or at the 
time Cromwell made settlement. (2) That before making settlement 
he had effectually transferred the quarter section of land that he owned 
in Kansas. (3) That he was not disqualified and that his entry should 
be allowed. 

A point is raised in the plaintififs appeal to this Department which 
was not discussed in the decisions below or in the briefs of the opposing 
counsel, namely, that as the area of the land owned by Mason in the 
State of Kansas (NE. J of Sec. 28, T. 9 S., B. 34 W.) contains 159.35 
acres, according to the field notes of your office, or less than one hun- 
dred and sixty acres, he is not therefore barred from making entry 
under section 20 of the act of May 2, 1890 (26 Stat., 81). 

It will be necessary for the purposes of this decision to consider this 
proposition first, although it is the last one discussed by plaintiff in his 
appeal, for the reason if the point is found to be well taken it will 
render a consideration of the other features of the case unnecessary. 

The language of the act of May 2, 1890, supraj having reference to 
this case, is as follows : 

and no person who shall at the time be seized in fee simple of a hundred and sixty 
acres of land in any State or Territory shall hereafter be entitled to enter land in 
said Territory of Oklahoma. 

As the plaintiff insists upon a strict and literal construction of the 
above statute, it will be necessary to ascertain as far as possible, in 
the light of previous legislation, just what meaning Congress intended 
to convey by the language employed. While the language of the 
statute is to the effect that no person who is the owner of a ^^ hundred 
and sixty acres" of land shall be entitled to enter land in Oklahoma 
Territory, yet I am inclined to think that it would be a too strict inter- 
pretation of that language to say that simply because the plaintiff in 
this case happened to be the owner of a small fraction less than a hun- 
dred and sixty acres he is therefore not disqualified from making the 
entry applied for. The history of legislation on this subject would 
seem to indicate that Congress has used the terms ^^ a hundred and 
sixty acres" and "quarter-section" interchangeably, and if this be 
true the fact that the laud owned by the plaintiff in the State of 



250 DECISIONS RELATING TO THE PUBLIC LANDS. 

Kansas contained a fraction less than one hundred and sixty acres or 
less than a quarter-section, makes no difference; he is barred equally 
with the owner of a fuU hundred and sixty acres or a technical quarter- 
section. 

In the case of Bei\jamin O. Wilkins (2 L. D., 129), the Department 
reviewed at length the several statutes pertaining to the subject under 
consideration, and held that ^^a ^quarter- section' of public land is 
under the homestead laws one hundred and sixty acres/' It was stated 
in that case as follows : 

It Reems clear to me from this review that Congress and the President used the 
terms '^quarter-section'' and "one hundred and sixty acres '' interchangeably and 
as meaning the same quantity of land, and that this resulted from the fact that a 
quarter-section under the government system of public surveys embraces or is 
intended to embrace Just one hundred and sixty acres, although from inaccuracies 
in adjusting meridians, and other exceptional reasons, it sometimes differs from that 
amount ; and that the purpose was to give settlers under the law one hundred and 
sixty acres, and no more. When, therefore, by reason of the surveys, an entry for 
this precise amount is impracticable, it must, as nearly as possible, approximate it 

.... It tlius appears that, substantially, the same words are used in limitation 
of land to be entered under both the pre-emption and homestead laws, and I canuot 
doubt that the terms " quarter-section ** and *' one hundred and sixty acres ** are used 
synonymously in each to mean one hundred and sixty acres; and this is in harmony 
with the general policy of the government under other laws* 

In the interpretation of Sec. 2289, Revised Statutes, which provides 
that every qualified person: ^' Shall be entitled to enter one quarter- 
section or a less quantity of unappropriated public lands," the Depart- 
ment, in the case of William C. Elson (6 L. D., 797), said, inter alia 

It is true that generally the quarter-section, if the survey be correct, will contain 
one hundred and sixty acres; but it was well known to Congress that many quarter 
sections were fractional in the survey, and that many, which were not fractional, 
did not contain exactly the one hundred and sixty acres of land. They, therefore, 
gave a settler the quarter-section as it should be found surveyed. 

.... An actual area-measurement of the government survey shows, as is weU 
known, that few subdivisions contain exactly the number of acres reported by the 
surveyor, generally containing more or less. The grants of the United States are not 
by quantity, but by description, and, it is a familiar rule, that a caU of quantity 
in a grant must yield to description, and the act of Congress is to be regarded as a 
grant as to each tracts in a certain sense. 

It will be observed that the question involved in tbe above cited 
cases was as to the entry of a quarter-section containing more than one 
hundred and sixty acres, and the entry was not rejected on account 
of the excess, the same being regarded as a quarter or one hundred 
and sixty acres ^^in conformity to the legal subdivisions of the public 
lands." 

The issue has probably not heretofore been raised, under the act of 
May 2, 1890, as to an entry of a quarter-section containing less than 
one hundred and sixty acres, but, as is well known, a great many quar- 
ter sections have been entered as such when the area-measurement 
woald not equal the one hundred and sixty acres; but as those entries 



DECISIONS RELATING TO THE PUBLIC LANDS. 251 

containing more have been allowed to stand, simply because the quar- 
ter-section was in conformity with legal subdivisions, it would seem 
that where the deficiency is shown to be small the rule should work 
both ways. Especially is this true since there is a provision of law to 
the effect that when a settler has entered less than one quarter- section 
ot land he may enter other and additional land lying contiguous to the 
original entry, which shall not, with the land first entered and occupied, 
exceed in the aggregate one hundred and sixty acres. But an applica- 
tion for additional land to make up the full one hundred and sixty aores 
ill such a case as the Kansas land herein referred to, would probably 
Dot be considered, for the reason that such entry under the rules must 
be regarded as a quarter-section or one hundred and sixty acres, and 
the maxim of de minimis non curat lex would apply. It does not logi- 
cally follow therefore, as contended by the plaintiff, that if he is barred 
by the ownership of 159.35 acres, he would be equally barred by the 
ownership of ten acres or any quantity less than one hundred and sixty 
acres, for the reason that when an entry is made for a much less quan- 
tity than one hundred and sixty acres, the entryman has the privilege 
of making an additional entry. 

To all intents, therefore, the land owned by Mason in the State of 
Kansas was a full quarter-section according to the legal subdivisions 
made on the basis of one hundred and sixty acres to the quarter. 
Technically, the quarter section of land in Kansas did not contain one 
hundred and sixty acres as shown by the field notes in your office. 
But it was intended that it should, and the fact that the results reached 
by the survey show a fraction less than one hundred and sixty acres 
was due to the variations allowable in making the said survey. To 
hold otherwise would be to declare Mason a qualified entryman on a 
technicality, based on an interpretation of the statute by itself alone 
and according to the mere literal meaning of its words. The statute 
most be construed in connection with the whole system governing the 
disposition of the public lauds and in the light of previous statutes 
upon the same subject. As heretofore shown, the terms quarter-section 
and one hundred and sixty acres, are used interchangeably, unless it is 
to be presumed that Congress, in the act of May 2, 1890, intended to 
reverse the former policy and introduce a fundamental change in the 
well established custom of the Department. 

The evident intent, in all legislation relating to the public lands, has 
been to limit the entry of said lands to those who do not already own 
one hundred and sixty acres of land or a quarter-section. And the fact 
that the quarter- section may consist of a little more or a little less than 
one hundred and sixty acres, is shown by the well established practice 
of the Department to cut no figure either in the admission or rejection 
of applications to make entry. When an 4'ntry is made it is made by 
description, and there are numerous decisions going to show that when 
a quarter-section contains more than one hundred and sixty acres, the 



252 DECISIONS RELATING TO THE PUBLIC LANDS. 

eatry therefor is uot necec^sarily rejected on account of the excess. 
There »eeins to be no goo<l reason for enforcing a stricter role in cases 
where the actual number of acres falls in a small fractional degree 
short of one hundred and sixty acres. The records of your office show, 
with reference to the Kansas land in ques^tion, that one hundred and 
sixty acres in round numbers were originally entercKl. Presumably this 
represents the number of acres that passed by purchase into the ik>8- 
session of the plaintiff Mason. 

The whole scheme for the disposition of the public domain has been 
to afford to landless peo])le the opportunity of securing homes. This 
sentiment runs throughout the debates of Congress in passing various 
acts relative to such disposition of the lands. And one of the tests of 
a person's qualifications to secure the benefits of the law in this regard 
has been, whether at the time of entry he was the owner of a quarter- 
section of land in any State or Territory, or approximately one hundred 
and sixty acres. This was the evident intent of Congress as gathered 
from the history of legislation on that subject, regardless of the language 
employed in the acts. This view is certainly in harmony with sound 
policy and is in strict accord with justice and good faith, which consti- 
tute the essential features in a prosier administration of the public land 
laws. 

As was said in the case of Byan et al, v. Carter et al. (93 U. S., 78)— 

No known rale of law requires na to interpret it (act of Confpress) according to its 
nteral import, when its evident intent is different. It may be tliat the words, taken 
in their usual sense, would exclude the case of Dodier ; )>at if it can be gathered, from 
a yiew of the whole law, and others in pari materia, that they were not used in that 
sense, and if they admit of another meaning in perfect harmony with the general 
scope of the ntatute, it will be adopted as the declaration of the will of Congrefs. 
Especially is this so when this construction withdraws the least number of cases from 
the operation of the statute. 

I think it may fairly be assumed, in the light of past legislation, that 
it was the evident intent of Congress in the act of May 2, 1890, to con- 
vey the same meaning by the language employed therein as is indicated 
in its previous acts. There would seem to be no good reason for estab- 
lishing a difi'erent rule from that already existing, especially as a differ- 
ent interpretation would have the effect of withdrawing a great number 
of cases from the operation of the iirohibitory statute, and thereby 
qualify a great number of persons to make entry who have heretofore 
been deemed disqualified ; and that too on mere technicality. 

It thus being decided that the plaintitt' was at one time owner of one 
hundred and sixty a(;res of land in the State of Kansas, and thereby 
disqualified to make entry, it becomes necessary to determine whether 
he was the owner thereof at 5 P. M. on October 13, 1893, the day and 
hour he alleges settlement on the tract in controversy. And in the con- 
sideration of this question it will be proper to attach much importance 
to Mason's good faith as gathered from the surrounding circumstances. 



DECISIONS RELATING TO THE PUBLIC LANDS. 253 

The facts relative to Mason's alleged transfer of bis Kansas land are 
sabstantially as follows: Mason alleges settlement October 13, 1893. 
The evidence shows, however, that he was in the Territory and had 
examined the )and several days prior to that date. He was negotiating 
with one Walter A. Carpenter, who had a settler's right to the land in 
question, for the purchase of said right. When the said purchase was 
consammated Mason alleges that at nine o'clock on the morning of 
Octol^er 13, 1893, he executed a deed transferring his land in the State 
of Kansas to his sister. Having acknowledged the said deed, he mailed 
it to his wife with instructions to send the same to the recorder's office. 
It appears that Mason did not know his wife's address, so he sent the 
deed to some one at Sabetha, Kansas, to be forwarded to his wife at 
St. Joseph or Marysville, Missouri. It seems also that the conveyance 
of the Kansas land was not in the nature of a sale, but was made as a 
gift, no money consideration passing between the parties to the con- 
tract. In explanation of the transaction Mason states, in affidavits 
accompanying a petition for rehearing, that prior to October 6, 1893, 
he received a letter from his sister saying that she was in need of 
financial aid. and that on that date he wrote her offering to give her 
tbe Kansas land and to make her a deed for the same. No evidence 
regarding these allegations was brought out at the hearing, and no fur- 
ther communication between Mason and his sister is shown. Mason 
claims that he has not seen the deed since he mailed it, and that he 
does not know whether his wife forwarded the same to the recorder's 
oflSce. The affidavits referred to, however, state that the deed was 
finally recorded, but it was after considerable delay. 

It will be unnecessary ibr this Department to consider at length the 
question as to whether or not the manner in which the said deed was 
delivered constituted a proper delivery in contemplation of law. In 
the light of the numerous authorities cited by counsel on both sides, 
and which it is not necessary to repeat here, I am of the opinion that 
Mason's act, under all the circumstances of the case, did not amount 
to proper delivery. There was apparently no previous agreement 
between the grantor and grantee as to how the delivery should be 
made, or that Mrs. Mason should act as the agent of both. The deed 
was not even sent to the grantee, nor were there any instructions that 
it should be delivered into the grantee's possession. 

The authorities are perhaps uniform in holding that when the 
grantor parts with all control over the deed, that act is effectual and 
operates from the instant of delivery. The matter of control over the 
deed constitutes the essence of the case at bar. The question arises, 
whether from the fact that Mason mailed the deed to his wife, without 
any previous agreement to that effect between the parties to the deed, 
he thereby parted with all control over the instrument. The deed was 
never placed in the possession of the grantee. There were no instruc- 
tions to Mason's wife that the deed should be delivered to the grantee; 



254 DECISIONS RELATING TO THE PUBLIC LANDS. 

in fact, the latter was at the time in Leavenworth, Kansas, a distance 
of three hnndred miles away. So that if Mason did not really iutend 
to transfer the Kansas land to his sister, he still had an opportunity to 
recall the deed, and in this view its delivery conld hardly be regarded 
as valid. 

When Mason mailed the deed he thereby constituted the government 
his ai^ent to deliver the same to his wife, and then by instructions be 
made his wife his agent to see that it was recorded, but neither was 
the agent of the grantee according to any former agreement; in fact, 
the grantee, as subsequent events showed, knew nothiug of Mason's 
intentions in this regard. 

The principal question, however, as heretofore implied, is as to 
whether or not Mason has acted in entire good faith in his transac- 
tions connected with the land in controversy. One suspicious circum- 
stance involved in the transaction is that Mason's sister, the grantee 
of the deed, apparently knew nothing of it. On the face of the record 
it looks as if she were employed as an unconscious beneficiary for the 
express purpose of qualifying Mason to make entry. No copy of the 
deed is put in evidence, nor of the letter containing the instructions to 
Mason's wife. The evidence concerning these things is made to depend 
solely upon the assertions of Mason, and he is the interested party. 
His testimony regarding what became of the deed after he had mailed 
it is entirely too vague and uncertain for a matter of so much impor- 
tance. He does not know whether the said deed was acknowledged by 
his wife; does not recollect the description of the land he deeded away, 
nor is he quite sure that the said deed was ever forwarded to the 
recorder's office, as he has never seen it since. 

Counsel for plaintiff in this case rely largely upon presumption to 
ciupply the deficiency caused by the absence of positive testimony. 
Given the frame- work, consisting of the bare statement of plaintiff 
tbat he properly executed and acknowledged the deed in question and 
placed the same in the mails, they depend upon presumption to com- 
plete the structure. They presume from Mason's statements that his 
intentions were honest and that the deed was properly delivered aod 
regularly recorded. But beyond the acknowledgments of Mason him- 
self the evidence is silent. 

The Department is unable to conclude' from Mason's uncorroborated 
statement, in view of the suspicious circumstances developed by the 
testimony, that being the owner of one hundred and sixty acres of land 
at nine o'clock in the morning of October 13, 1893, he could completely 
divest himself of all title thereto, without any positive agreement or 
negotiation with the grantee, and by the simple act of placing the deed 
in the mails transform himself into a properly qualified entryman by 
five o'clock in the afternoon of the same day. His purpose seems mani- 
fest. The history of legislation will show that the government has 
jealously limited the disposal of the public domain for the benefit of the 



DECISIONS RELATING TO THE PUBLIC LANDS. 255 

landless; so mach so that where an applicant to make entry is shown 
to have been the owner at one time of one haudred.and sixty acres of 
land, stronger evidence that he has become divested of title thereto 
will be required than is present in this case. 

It is unnecessary to consider the evidence touching Mason's alleged 
settlement on and improvement of the land in question prior to Crom- 
well's entry, in view of the fact that he is found to be disqualified by 
reason of his ownership of one hundred and sixty acres of land in the 
State of Kansas at the date of said settlement. 

Your office decision is hereby affirmed. 



repayment-fees axd commissions. 
Leslie O. Husted. 

fiepaymeDt of the fees and commissionf) paid on an entry will not be allowed where 
the entry is relinqaisbed on account of the undesirable character of the land, 
and a second entry made. 

Secretary BlisH to the Commissioner of the General Land Office j March 
(I. H. L.) 25, 1897. (J. L. McC.) 

Leslie O. Husted, on March 26, 1889, made homestead entry for the 
8E. J of Sec. 15, T. 7 N., R. 49 W., Denver laud district, Colorado. 

Finding it was impossible to obtain water fit for ase, he was, upon 
his own request, permitted to relinqnish the land and make a second 
entry. Afterward he applied for repayment of the tees and commis- 
sions paid upon his former entry. This application your office refused, 
by letter of March 4, 1896. He now appeals to the Department. He 
quotes from the General Circular of October 30, 1895, which states that, 

where an entry is canceled as invalid for some reason other than abandonment, and 
not the wilful act of the pArty, he ... . may have the fee and commissions paid 
on the canceled entry refunded on proper application, under the act of June 16, 1880.. 

The paragraph quoted from the General Circular expressly refers to 
an entry '^canceled as invalid;" the entry in the case at bar was not 
canceled because invalid. The act of June 16, 1880, provides for repay- 
ment where entries have ^^ been erroneously allowed and can not be 
eonfirmed;" the entry here in question could have been confirmed, but 
theentryman did not wish that it should be; he preferred to relinquish 
it and select other land. 

The decision of your office was correct, and is hereby affirmed. 



256 DECISIONS RELATING TO THE PUBLIC LANDS. 

RBPAYMENT— PATENTEE-SITRRENIJER OF PATEITT. 

Henby H. Harbison. 

On application for the retnrn of purchase money by a patentee who was required to 
purchase under section 5, act of March 3, 1887, when in fact the land passed 
by the railroad grant under which he held, the applicant should surrender the 
patent, but should not be required to execute a deed of relinquishment. 

Secretary Bliss to the Commissioner of the General Land Office^ March 
(I. H. L.) 15j 1697. (J. L) 

This case iuvolves the repayment of the sum of two haiidred dollan> 
tlxe purchase mouey paid to the United States by Henry H. Harrison 
for the E. i of the NE. i of section 9, T. 47 N., E. 4 W., Ashland land 
district, Wisconsin, containing eighty acres of land. 

Said tract was granted by the acts of June 3, 1856 (II Statutes 20), 
and May 5, 1864 (13 Statutes 66), to the State of Wisconsin to aid in 
the construction of railroads. Decisions of the supreme court rendered 
on June 3, 1895, and reported in 159 U. S. reports — W^isconsin Central 
Railroad Co. r. Forsythe, p. 46, and Spencer «?. McDougal, p. 62 — finally 
a^yudged that the Wisconsin Central Bailroad Company acquired from 
the Stiito of Wisconsin a good title to said tract of land under said 
grants. And it appears that Harrison by sundry intermediate convey- 
ances had acquired and was owner of the title of the company. 

Previous to the publication of said decisions, your office and this 
Department had held that the tract in contest (and other lauds in con- 
simili ea«u), did not pass under the grants aforesaid, and was subject 
to entry under the general land laws. Your office thereupon advised 
Mr. Harrison, that it would be necessary for him t-o purchase said tract 
firom the government under the fifth section of the act of March 3, 1S87 
(24 Statutes, 556). Consequently Harrison, on June 8, 1893, paid tbe 
government two hundred dollars for the tract, as appears by certificate 
No. 5728 of that date issued at Ashland, Wisconsin. And on August 
31, 1894, a patent for the land was issued to him. 

After the promulgation of said decisions, to wit: on July 3, 189o, 
Harrison filed his application for repayment of the two hundred 
dollars aforesaid in accordance with section 2362 of the Bevised Stat- 
utes of the United States. On December 6, 1895, (by letter "F"), 
your office required Harrison (1) to surrender the patent issued to Lim, 
(2) to furnish a duly executed deed relinquishing to the United States 
all right and claim to the laud under said patent, (3) to have said deed 
duly recorded, and (4) to furnish a supplemental abstract of title con- 
tinued from June 27, 1895 — the date of the abstract now on file — down 
to and including the date of recording said deed. 

On January 15, 1896, Harrison tiled a motion for a review of said 
decision. On July 2, 1896 (letter "F"), your office denied said motion, 
and declined to modify the former decision. 



DECISIONS RELATING TO THE PUBLIC LANDS. 257 

Whereupon Harrison appealed to this Department. 

By section 2362 of the Revised Statutes it is enacted that : 

The Secretary of the Interior is authorized, upon proof being made to his satis- 
faction that any tract of land has been erroneously sold by the United States so 
that from any cause the sale can not be confirmed, to repay to the purchaser or to 
his legal representatives or assigns, the sum of money which was paid therefor, out 
of any money in the Treasury not otherwise appropriated. 

It is conceded, that before he applied to purchase under the act of 
March 3, 1887, Harrison had acquired the valid title already conveyed 
by the United States to the State of Wisconsin 5 that the patent issued 
to biin conveyed no title, because the land therein described did not 
belong to the Uuited States; and that his right to be repaid the pur- 
chase money is unquestionable. The only question involved is merely 
a matter of administration to be determined by reference to the 
regulations. 

The General Land Office circular of February 6, 1892, on page 86, 
and the circular of October 30, 1895, on page 08, both prescribe as 
follows : 

If however, the applicant has acquired the valid title already conveyed by the 
United States^ it will not be necessary for him to reconvey the land, but he may 
make a full statement, with corroborative evidence of the facts, waiving all claim 
under the invalid entry, and thereupon receive repayment of the amount erroneously 

paid. 

Harrison filed a full statement, which is corroborated by the records 
of your office. He is willing and ofters to surrender his patent, and 
waive all claims under it, and the invalid entry on which it was issued. 
Your office erred in requiring him to execute a deed of relinquishment, 
aud have the same recorded, and to furnish a supplemental abstract of 
title continued from the date of the abstract on file down to the date of 
such recordation. 

The patent is null and void to all intents and purposes. It conveyed 
no right, title, interest or estate which Harrison can consistently under- 
take to relinquish. He should be repaid the money upon the return 
and surrender of the patent with his receipt for the money duly attested 
endorsed thereon, in full payment and satisfaction of all his claims 
thereunder, in such form as your office may prescribe. 

Your office decision is hereby modified as above indicated. 
10671— VOL 24 17 



258 DECISIONS RELATING TO THE PUBLIC LANDS. 

ADJOINING FAKM ENTRY— TO\VNSITE—MlXER.VL. LAND. 

Caldwell r. Gold Bar Mining Company. 

An adjoining farm entry in invalid, and will not be allowed to stand, if the entryuiaL 
was not in fact the owner of the alleged original farm at the time of entry. 

An application to make townsite entry under section 2389 R. S., will not be allownl, 
where the namber of bona fide occupants is not given, and it is not manifest that 
the occupants in fact desire in good faith to make such entry, and also vrbere 
the application covers land apparently mineral in character, and in close prox- 
imity to another town. 

In case of an attack on a mineral location of land that has once been adjud^d min- 
eral in character, the abandonment or forfeiture of the claim must be showD h\ 
clear and unmistakable evidence. 

Secretary Bliss to the Commissioner of the General Land Office^ March 
(L H. L.) 15, 1897, (P. J. C.) 

The record shows that the Gold Bar Qaartz Mining Company made 
application for patent for the Gold Bar mining claim, lot No. 206, Sa<;- 
ramento, California, land district, on November 24, 1893. Notice by 
X)ublication was duly given of this application, which ran from Novem- 
ber 26, 1893, to February 3, 1894. 

John Caldwell, a superior judge of Nevada county, California, filed 
in the local office an application to enter, for townsite purix)ses, "in 
accordance with the provisions of sections 2388-9 inclusive (JR. S.)," 
lot 3 in Sec. 33, lot 6 in Sec. 28, lot 12 in Sec. 27, and fractional NW. \ 
of NW. J (also described as lot 20) in Sec. 34, T. 16 N., R. 8 E., M. D. 
M., in trust for the uses and i)urposes of the occupants and dwellers 
thereon. He represented that the land was then used and occupie<l for 
townsite purposes and had been since 1860. This ax)plication is not 
dated, but the local officers say it was presented January 23, 1894. It 
appears that they declined to accept the application beirause of conflict 
with the mineral application ^^and with the homestead entry of Richard 
Ryan." It is also stated by the local officers that on the same day 
Judge Caldwell filed a protest against the mineral entry. It seems 
that this protest was against the <^ mineral applicants the Gold Bar 
Quartz Mining Company, Richard Ryan, homestead claimant, and Cen- 
tral Pacific Railroad Company.'' It is dated January 15, 1894, and 
alleges that he desires to make entry of the land for the use and benefit 
of the inhabitants thereof; that the land is entirely enclosed and occu- 
pied by persons residing thereon; that there are more tlian fifteen 
dwellings and families thereon, the total number of inhabitants being 
one hundred and fifty; that the land has been used for townsite pur- 
poses for more than thirty years; "that the majority of the occupants 
of said premises have requested me to make application in trust for 
them under the United States Revised Statutes;" that he files "this 
adverse claim and protest against the said application by said Gold 
Bar Quartz Mining Company for said Gold Bar Quartz Mine," because 



DECISIONS RELATING TO THE PUBLIC LANDS. 269 

^^the laDcl embraced therein is agricultural land, and that no part of it 
is mineral and that no mineral or quartz of any kind has ever been 
discovered thereon ; '' that the land is settled ui>on and occui)ied as a 
towDsite; and that ^^that portion in section 27 is excepted from the 
railroad grant by reason of the pre-emption claim of J. J. Collins.*' 

This protest is not sworn to by the judge, but he states 'Hhat the 
facts upon which said adverse claim and protest are based being (are) 
fully set forth in the affidavits hereto annexed." 

The affidavits referred to were made by Eichard Ryan, one of the 
defendants in the protest, and John Thomas, in which they swear that 
there are nine dwellings etc. on the land; that there is no lode existing 
within the limits of the Gold Bar claim; that no gold nor quartz has 
been extracted from the premises; that the ground embraced is non- 
mineral in character, and that there are no indications of mineral upon 
the same; and that Collins settled upon lot 12 in Sec. 27 prior to 1862 
and filed his declaratory statement therefor in 1868. This affidavit was 
sworn to on January 12, 1894. 

On January 24, following, the local officers issued notice calling for a 
hearing on this protest. 

On February 3, 1894, the mining company made application to pur- 
chase the land applied for, which was denied because of the x)ending 
contest. Subsequently, in the same month, the mining company 
applied for a re-hearing on its application to purchase and to recon- 
sider the respective orders issued, and that the notice might be dis- 
missed and quashed. . The local officers thereupon modified their former 
decision to the extent of (gnashing the notice which had been issued; 
and thereupon transmitted the record to your office with the recom- 
mendation that a hearing be ordered. The mineral claimants appealed 
from their action. 

Your office, by letter of January 20, 1894, considered this appeal, 
aud in doing so recited the prior history of lot 3, included in the tract, 
as follows : 

In deciding this question it becomes necessary to consider briefly the facts of 
record relative to said lot 3, of section 33. 

This office by decision dated November 27, 1885, (letter F), in the case of S. J. 
Alderman r. C. P. R. R. Co.^ involving said lot 3, decided: *^ The residence of Irish 
antedating the railroad grant, and ext«nding beyond the date of definite location, 
excepted the land from the operation of the grant, the same is therefore subject to 
disposal under the general laws of the United States." 

•^aid office decision was affirmed by the departmental decision of September 28, 1887. 

It appears from the record in quasi contest No. 601, W. II. Weldon claiming the 
Gold Bar Quartz mine r. C. P. R. R. Co. that Weldon on October 8, 1890, filed a peti- 
tion aUeging that the land in said lot 3, is mineral in character. 

Upon said petition a hearing, which was ordered by this office, was held March 
27, 1891. 

'Said hearing resulted in a final decision by this office, dated February 26, 1892, 
from which I quote: ''You decided that the land was mineral in character and 
recommended that it be excluded from the grant to the said respondent. 



260 DECISIONS RELATING TO THE PUBLIC LANDS. 

''The parties in interest vrere duly notified of yoar deciBion and no appeal has been 
taken therefrom. 

''Your decision is accordingly affirmed and the Central Pacific R. R. Co.'s. selection 
as per list No. 12, is hereby canceled as to the extent of said lot No. 3 of Sec. 33, 
T.16N., R.8E., M.D.M. 

"It farther appears that while the case was pending in this office yon allowed in 
Tiolation of Rnle 53 of Practice, homestead entry No. 5945 to be made by Richard 
Ryan '^ 

"This eutr}" covers the tract involved in the above contest andwaH wholly irregu- 
lar but will be allowed to stand snbject to any prior attached rights.^' 

In view of the foregoing, the proper townsite authorities and' Richard Ryan will 
be allowed thirty days in which to apply for notice of a hearing, to be by them served 
in accordance with the rules of practice, at which evidence mnst be submitted to 
show whether the land embraced iu said mining claim is valuable mineral land, and 
whether that part thereof embraced in said lot 3 is more valuable for mineral than 
agricultural purposes. 

Lot 12, of section 27, T. 16 N.» R. 8 £., embraced in said declaratory statement is 
also within the grant to the Central Pacific Railroad Company. Before the towusite 
declaratory statement can be received and filed, it will be necessary to have said lot 
12, regularly excepted from the grant. 

In order to show that lot 12, ought to be excepted from the grant, said railroad 
company should be ina«le a party defendant in this case by due service. 

A motion for review of this decisiou was denied by your oiiice letter 
of October 4, 1894. 

A hearing was had before the local officers in parsuance of this 
order, at which the townsite claimants and Bichard Ryan were repre- 
sented by an attorney, and there was also present an attorney for the 
mining company. The railroad company appeared and filed a protest 
in reference to lot 12 in section 27. It may be said in this connection 
that this lot is not included in nor does it conflict with the Gk>ld Bar 
Quartz mine in any way. 

As a result of the hearing before the local officers they decided that 
the land involved is non-mineral in character and that lot 12 of section 
27 was covered by a valid pre-emption claim at the date of the grant to 
the Central Pacific Bailroad Company, and decided that the mineral 
application of the Gold Bar Mining Company should be canceled; that 
lot 12 was excepted from the terras of the grant; that Bichard Byan's 
homestead entry of an additional farm homestead should be allowed to 
stand intact; and that Judge Caldwell or his successor in office be 
allowed to enter the land applied for by him and not ^embraced in 
Bichard Byan's claim. 

On appeal your oflico affirmed the decision below, except as to Byan-s 
additional farm homestead, which was held for cancellation. A motion 
for review of said decision was denied, and the case now comes befoi'e 
the Department on the separate appeals of the mineral claimants and 
Byan. The specifications of error filed by the mining company are 
quite voluminous and will not be set forth, but such errors as are sug- 
gested that are pertinent to the issues involved will be considered. 
The error alleged by Byan is in holding his additional farm homestead 
entry for cancellation. 



DECISIONS RELATING TO THE PUBLIC LANDS. 261 

As to the appeal of Eyan: The judgment of your office that his 
additional farm homestead entry should be canceled is concurred in. 
In the first place, it was erroneously allowed by the local officers, inas- 
much as the land was then under contest and of course not subject to 
entry until that contest was disposed of. Again, this entry should 
not be allowed to stand under the circumstances. In his affidavit he 
stated 

that I now own and reside npon an original farm containing about three acres and 
DO more; that the same comprises a portion of mineral lot No. 198, in the NE. i of 
Sec. 33, T. 16 N., R. 8 £., and is contiguous to the tract this day applied for. 

The testimony in the case shows that Eyan was only a settler or 
^'Squatter " on the mineral land at the time he made his additional farm 
entry and that he had no title to the land until about two mouths prior 
to the hearing which was held December 17, 1894. If it be conceded, 
for the sake of argument, that he had the right to make additional farm 
entry simply by reason of purchase of this tract, yet it is clear that he 
had DO such title to the three acres as would warrant the allowance of 
the entry at the time it was made (Boord v. (xirtman, 14 L. D., 516; 
Rush r. Bailey, 16 L. D., 565). 

Apparently a little more than one half of the ground included in the 
Gold Bar is in lot 3 of Sec. 33. It is triangularly shaped, the base of 
the triangle extending almost the entire length of the southerly side 
line of the mining claim and the apex being just outside the northerly 
side line. 

This particular piece of land has been the subject of litigation in the 
Department and the local courts since 1885. This is probably owing 
to the fact that the land has been inhabited to some extent ever since 
1860, by a few persons; its close proximity to the city of Grass Valley, 
and that it is surrounded by mines and mining claims, many of which 
have been patented by the government, and which are now, or have 
been in the past, extensively worked. 

So far as disclosed there has never before been any attempt made to 
secure title to the laud for townsite purposes, neither was the tract 
under municipal control or laid oft' in lots and blocks. It is shown by 
the testimony of one witness, however, that since this proceeding was 
commenced it has been included within the corporate limits of Grass 
Valley. 

It will be observed that the application for townsite entry is not made 
under the act of March 3, 1877 (19 Stat., 392), as an additional entry for 
townsite purposes, but is for an original townsite entry under ** sections 
238^9 inclusive." 

It is gathered from the record that the application of the superior 
judge was brought about by a petition from the residents. There is in 
the record a petition signed by ten persons representing themselves to 
be *'of the number represented by your honor, officially, in a certain 
petition and application for townsite patent," etc., requesting him to 



262 DECISIONS RELATING TO THE PUBLIC LANDS. 

withdraw the application made for entry. In compliance therewith, as 
stated by him, the superior judge filed a formal withdrawal of his said 
applicatiou, which was dated December 10, 1894. Subsequently, how- 
ever, on the day the hearing began, the judge withdrew this abaDdon 
meut. In his letter of withdrawal he states that he had supi)osed the 
request to abandon the application presented to him had been made by 
*'all the townsite residents within the limits of said Gold Bar quartz 
claim," but he is '^ now informed that five of the townsite residents *^ did 
not join in the petition. 8o it appears that the superior judge is now 
' representing the wishes of but five persons in prosecuting his applica- 
tion for patent. At the hearing the attorney who appeared for the 
townsite applicants also acted for Kyan, to the extent of offering the 
testimony taken in behalf of the townsite applicants as evidence for 
Kyan. It will be remembered that the protest of the superior judge 
was made both against Ryan and the mineral claimant, and his appli- 
cation to enter included the land Ryan had entered as an additional 
farm homestead. It is therefore clearly apparent, if these parties — the 
superior judge and Ryan — are acting in good faith, that their interests 
are necessarily antagonistic. 

It is shown by the testimony on the part of the defendant, that at 
the time of the hearing there was residing on the mining claim the 
individuals who petitioned the superior judge to abandon the applica- 
tion for townsite. This petition was shown to one of the witnesses for 
the defense and he was asked if it included all the settlers within the 
Oold Bar mining claim. His reply was, that it did not; that those not 
signing were Richard Ryan, John Thomas, John Thompson, Mrs. Wal- 
lace and Peter Keelly. It is shown, however, that Ryan did not live 
on the land, but had a part of it included in his enclosure. It is also 
shown that Peter Keelly did not then reside on the tract, his house 
having been burned previously. The townsite claimants' testimony 
shows *'ten or eleven dwellings" and gives the namesof eleven persons 
living there with their families, including Weldon, who it appears is 
largely interested in the Gold Bar Company. It also shows that there 
have been people living on the land since 1860. 

It also appears that all the settlers, except five, have entered into an 
agreement with the mining company by which they are to get title to 
the surface of the ground they occupy. 

It further appears that there have been mines worked in this immediate 
vicinity since its first settlement; that in all directions immediately sur- 
rounding the Gold Bar are mining claims and on the two sides and one 
end have been patented as mineral land. It is shown that in 1888 Ryan 
and Keelly and two others located lot 3 as a placer claim. The ground 
included in the Gold Bar claim was originally located in 1877, under the 
name of the Silver Star, and relocated under its present name in 188S. 

It seems to me, in view of all these circumstances, that there is not 
presented such a case here as will warrant the Department in permit- 
ting an entry of this land under the townsite law, at least under the 



DECISIONS RELATING TO THE PUBLIC LANDS. 263 

application that is now pending. The actual number of bona fide occvl- 
pants of the tract is not given, neither is it shown that any emergency 
exists that would demand the granting of another and independent 
townsite entry such as this application contemplates, in such close 
proximity to another town. In the protest filed by the superior judge 
it is alleged that there are "more than 9 dwellings occupied by 8 
families,'* but the testimony does not show "more than 9 dwellings.'' 

It is contended that the former decision of your office in the case of 
Weldon r. Central Pacific R. R. Co., affirming that of the local officers 
adjudging the land included in the Gold Bar to be mineral in character, 
is res judicata of that question. It appears to me that there is much 
force in this proposition. If its mineral character was such as to except 
it from the operation of the grant to the railroad company, it would 
seem to be ample for the purpose of at least throwing the bunleu of 
proof upon those attacking it on the ground that it is agricultural, 
which is one of the charges made in the affidavit of contest. This 
question as to the burden of proof in cases where there has been a 
former adjudication on this subject, is fully discussed in all its features 
in Stinchfield v. Pierce, 19 L. D., 12; Dargin et al. i\ Koch, 20 L. D., 
384, and McCharles v. Roberts, Id., 564, and it is not deemed necessary 
to go over the ground again. It is enough to say that in the last-named 
case it was decided that where parties attack a mineral location on land 
that has once been adjudged to be mineral in character it is necessary 
to allege and prove abandonment or forfeiture of the mining claim and 
that the testimony should be clear and unmistakable; 

that after final Jadgment declaring land to be mineral in character the simple allega- 
tion that the land is as a present fact more valuable for agriculture is not sufficient 
upon which to order a hearing, and again compel the mineral claimant to adjudicate 
the question. 

The clear preponderance of the testimony in the case at bar is with 
the mineral claimants. It is shown that there is some mineral in 
sight on the claim. It is true, as said in your office decision, that no 
ore has been produced by the claimants, but this may be accounted for 
by the fact that there has been continuous litigation over the land. 
Bat be this as it may, the fact is that there is not sufficient evidence in 
the case to warrant a reversal of the former judgment as to tne char- 
acter of the land. 

Your office judgment that the land is not mineral in character is 
therefore reversed, and the application by the superior judge denied. 



264 DECISIONS RELATING TO THE PUBLIC LANDS 

INDIAN LiANDS-AXLOTMENT-CONTEST. 

Opinion, 

The Secretary of the Interior has authority to investigate the validity of an Indian 
allotment at any time prior to the issue of the first patent provided for anderthe 
allotment law, and on sufficient cause shown, to rescind the approval of an allot- 
ment and reject it. 

Assistant Attorney -General Lianberger to the Secretary of the Interior, 

February 15, 1897. (W. C. P.) 

A letter from the Commissioner of the General Land Office in regard 
to bearings on charges against the legality of certain Indian allotments 
was referred to me by First Assistant Secretary Sims, with request for 
an opinion npon the questions involved. 

Other papers relating to similar matters were transmitted by the 
Commissioner before and after said letter was received, and were re- 
ferred to me for an opinion. Subsequently the Commissioner addressed 
a letter to you requesting that all these matters be considered together 

It seems in this particular instance allegations were made that the 
lands covered by certain Indian allotments were covered by a heavy 
growth of timber, which constituted their chief value, and that the 
allotuieuts were made for the benefit of timber speculators, whereupon 
the Commissiouer of the General Land Office ordered a hearing to 
determine the facts. This action was taken under depai*tmental letter 
of December 6, 1895, to the Commissioner of the General Land Office, 
wherein it was said : 

In accordance with your recommendations yon are hereby anthorized to suspeud 
action on all Indian allotments in said States under section 4 of said act pending 
investigation of the charges preferred against the same. 

In the letter which called forth these instructions the Commissioner 
of the General Land Office made the following statement and sugges- 
tion: 

I have temporarily suspended action on a number of allotment applications in said 
States now in this office, and on a number of allotments which have been before the 
Department and approved for patent, pending instructions from the Department in 
the matter. 

I respectfully suggest that this office be authorized and directed to suspend all 
action on Indian allotments under section 4 of the general allotment act of February 
8, 1887, in the States of Minnesota and Wisconsin, pending investigation thereof by 
a special agent of this office as to the charges preferred against the same in the let- 
ters transmitted herewith. 

The instructions given by the Department when read in connection 
with this letter from the Commissioner of the General Land Office 
which called them forth are broad enough to justify his conclusion that 
the order of suspension covered approved allotments as well as those 
where applications were under consideration. 



DECISIONS RELATING TO THE PUBLIC LANDS. 265 

I take it, however, that my opinion was desired upon the general 
question as to the authority of the Secretary to investigate the legality 
of an allotment after approval, rather than upon the question as to 
whether the action of the Commissioner of the General Land OflBce in 
ordering hearings on charges against approved allotments was within 
the scope of his instructions. 

The Commissioner of Indian Affairs requested the Commissioner of 
the General Land Office to rescind his order for these hearings, con- 
tending that the approval of any Indian allotment is a final determina- 
tion of the right of the Indian thereto, and that thereafter there is no 
authority to investigate the legality of the allotment. In support 
of this contention he cites the decision in the case of Falconer t\ Price 
(19 L. D., 167), and a decision of December 3, 1888, in respect to selling 
timber by the allottee after approval. He also argues that the ruling 
of the supreme court that where a right to a patent has once been 
vested in a purchaser of public lands, it is equivalent to a patent issued, 
is by analogy applicable to an Indian allotnient. 

The decisions of the supreme court (Stark v. Starrs, 6 Wkll., 402, and 
Simmons v. Wagner, 11 Otto, 260), cited by the Commissioner of Indian 
Afl'airs, do not touch upon the question of the authority of this Depart- 
ment to investigate the legality of an entry of public lands at any time 
prior to the issuance of patent, but announce the rule that a right once 
vested, that is, by legal entry or purchase, is equivalent to a patent 
against subsequent claimants of the land. These cases are not in point 
here. The authority of this Department to investigate entries of the 
public lands, and to cancel any entry shown to be illegal at any time 
prior to the issuance of patent, is too well established to require the 
citation of authorities in support of the proposition. By analogy this 
same rule may be well applied to Indian allotments. 

The departmental letter of December 3, 1888, does nob announce any 
rule that should be recognized as controlling the question now under 
consideration. That letter simply instructed theCommissioner of Indian 
Affairs that certain Chippewa Indians who had been given allotments 
under a treaty with that tribe might be allowed to sell the timber upon 
their allotments after approval by the President and prior to the issue 
of patent thereon. This action does not by any means go to the extent 
of saying that this Department would have no authority to investigate 
as to the legality of any allotment at any time x>rior to the issue of 
patent. It is true that the right under an approved allotment upon 
which patent subsequently issues relates back to the date of approval, 
but that has no influence upon the question now under consideration. 

The decision in the case of Falconer v. Price (19 L. D., 167,) seems to 
sustain the contention of the Commissioner of Indian Affairs. It seems 
that Falconer applied to contest Price's allotment, and in the decision 
thereof, after reciting that the allotment was approved by the Commis- 
sioner of Indian Affairs, and by the Department, and was sent to the 



266 DECISIONS RELATING TO THE PUBLIC LANDS. 

General Land Office, with directions to issue patent thereon, but that 
no patent had been issued, it is said: 

Yonr office held that the allotment having been approved by the Department, tbe 
qnt'stion as to the right of Price was Bettled, and your office declined to order a hear- 
ing in the case. Your action is approved. The decision of your office is affirmed. 

There is no discussion of the question, no citation of authority, nor 
anything to indicate the line of reasoning by which the conclusion wu8 
reached. I can not agree with that conclusion. The duty of making 
these allotments devolves upon the Secretary of the Interior, and while 
the interests of the Indians should be carefully guarded, there is also 
an obligation upon him to watch the interests of the government aud 
to prevent the making of illegal allotments. A mistake may be cor- 
rected or a fraud prevented at any time before the Secretary of the 
Interior, as the officer having charge of the public lands and their dis- 
posal, completes his duties so far as to issue the patent provided for iu 
said law. Having been given charge of this work he is necessarily 
thereby vested with authority to do whatever may be necessary to its 
proper performance. 

As said before, this question may be determined by applying the rules 
which obtain as to the sale or other disposition of the public land.s 
under other laws. A homestead or other entry is subject to cancella- 
tion at any time prior to the issuance of patent, for fraud or illegality. 
That the same rule should be applied in Indian allotments as in tbe 
ease of final entries will not be seriously disputed. 

After a careful consideration of this matter, I am of the opinion, and 
so advise you, that the Secretary of the Interior has authority to inves- 
tigate the validity of an Indian allotment at any time prior to the issue 
of the first patent provided for in the allotment act, and upon sufficient 
cause shown, to rescind the approval of the allotment and reject it. 

Approved : 

David R. Fbancis, 

Secretary. 



MIXrXG CLlAJM-XOTICE-POSTING. 

Circular. 

Department of the Interior, 

General Land Office, 
^ya8hington, D, C, March 11, 1897, 
Registers and Receivers, 

United States Land Offices, 

Gentlemen : Your attention is directed to the fact that by decision 
rendered by the Department on February 27, 1897, in the case of 
W. H. Gowdy et al,, v. The Kismet Gold Mining Company, the decision 
rendered in said case on May 23, 1896, and reported in 22 L. D., 624, 



DECISIONS RELATING TO THE PUBLIC LANDS. 267 

was modified, and paragraph 29 of the Mining Regulations amended so 
as to read as follows: 

29. The claimant is then required to post a copy of the plat of snch enn-ey in a 
coDspicnoiis place upon the claim, together with notice of his intention to apply 
for a patent therefor, which notice will give the date of posting, the name of the 
claimant, the name of the claim; the mining district and county; whether or not 
the location is of record, and, if so, where the record may be found, giving the book 
and page thereof; the number of feet claimed along the vein and the presumed 
direction thereof; the number of feet claimed on the lode in each direction from the 
]>oiiit of discovery, or other well defined ])lace on the claim ; the names of all adjoin- 
ing and conflicting claims, or, if none exist, the notice should so state. 

According to the last decision of the Department, the amendment of 
said paragraph will take effect on the first day of June, 1897, and all 
publications thereafter made must contain the information therein pre- 
scribed. All publications made or started prior to that date are to be 
treated in accordance with the practice of the Department existing 
prior to the original jdecision in the case of W. H. Gowdy, et aL, v. The 
Kismet Gold Mining Company. 

Said decision of February 27, 1897, will be found published in Vol. 
24 of Land Decisions, page 191. 

Very respectfully, B. F. Best, 

Acting Commi88io7ier, 
Approved : 

Wm. H. Sims, 

Acting Secretary, 



MISSISSIPPI I^A20JS-ACT OF FEBRUARY 17, 1807. 

Instructions. 

Department op the Interior, 

General Land Office, 
Washington, D. C, March 22, 1897. 
'Itae Begister and the Eeoeiver, 

United States Land Office, Jackson, Mississippi. 

SiES: The act of Congress, approved February 17, 1897, provides as 
follows : 

AN ACT to enable certain persona in the State of Miasiasippi to procare title to public lands. 

Be it enacted by the Senate and Hou»e of Representatives of the United States of America, 
in Congress assembled^ That all persons who, prior to January nineteenth^ eighteen 
hnndretl and ninety-fire, purchased in good faith from the State of Mississippi any 
lands within the six miles or granted limits of the Mohile and Ohio Railroad, and 
which lands were included in approved swamp-land list numbered seven, Augusta 
series, their heirs or assigns, shall have the preference right for one year from the 
passage of this act to enter under the homestead laws of the United States not 
exceeding one hundred and sixty acres of the lands so purchased by them from the 
'State of Mi.ssissippi and to purchase not exceeding one hundred and sixty acres 
additional of such lands at one dollar and twenty-five cents per acre, or, if they 



268 DECISIONS RELATING TO THE PUBLIC LANDS. 

elect not to avail themselves of the hpmestead law, to purchase three handled aod 
twenty acres of such land : ProHded, howereff That this aot shall not affect the 
rights of homestead claimants who, between the sixteenth day of February, eighteen 
handred and ninety-five, and the twenty -seventh day of May, eighteen hundred and 
ninety-six, made settlements and entries or filed with the local laud officers applica- 
tions to enter in good faith, under the homestead laws, any of the lands included in 
the provisions of this act not occupied or actually and substantially improved by 
such purchasers from the State. 

Sec. 2. That all persons who have legally purchased any of the lands aforesaid at 
tax sales shall be considered assigns within the meaning of this act. 

Approved, February 17, 1897. 

The act provides that persons who, prior to January 19, 1895, pur- 
chased in good faith from the State of Mississippi any of the lands in 
question, their heirs or assigns, shall have one year from the passage of 
the act within which to enter, under the homestead laws, not to exceed 
one hundred and sixty acres of land so purchased by them, and to pur- 
chase from the United States, one hundred and sixty acres additional 
at $1.25 per acre; or, if they do not desire to make entry under the 
homestead laws, to purchase three hundred and twenty acres of said 
land. It also provides that such act shall not affect the rights of home- 
stead claimants who, between February 16, 1895, and Afay 27, 1896, 
made settlements and entries or filed applications to enter in good 
faith, under the homestead laws, any of the lands included in the pro- 
visions of the act not occupied or actually and substantially improved 
by such purchasers from the State. 

Section two provides that persons who have legally purchased any 
of said lands at tax sales shall be considered assigns within the mean- 
ing of this act. 

All persons applying to enter either under the homestead law or to 
purchase any of such lands by virtue of their rights as purchasers from 
the State, must present to you satisfactory evidence that they were 
purchasers from the State prior to January 19, 1895, or are heirs or 
assigns of such purchasers. 

All persons who have made homestead entries of any of said lands 
between the dates mentioned in the proviso to the first se<*tion of the 
act, or had filed applications in the local office to make such entries, 
are entitled to perfect their entries even as against the purchasers 
from the State unless the land entered or embraced in their application 
was occupied or actually and substantially improved by such purchas- 
ers from the State, but they must submit satisfactory evidence that no 
portion of the land embraced in their entry or application to enter was 
so occupied or actually and substantially improved by any purchaser 
from the State at the date of their entry or application. 

If the purchaser from the State of any of the lands embraced witliiu 
the provisions of this act do not apply to make entry under the home- 
stead law, or to purchase said lands within one year from the passa^re 
of this act, such lands will be subject to settlement and entry under 
the homestead law as other portions of the public domain, and nothing 



DECISIONS RELATING TO THE PUBLIC LANDS. 269 

in this act will be so construed as to impair or affect the rights of any 

homestead settler upon said lands, but such subsequent right will be 

subject to the preference right of purchasers from the State for the 

period of one year. 

Respectfully, E. F. Best, 

Acting Commissioner, 
Approved: 

C. N. Bliss, 

Secretary. 



ABANDONED MILITABY RESERVATION—FORT CAMERON. 

Instructions. 

Department of the Interior, 

General Land Office, 

Washington, D. C, March 22 j 1897. 
Begistsr and Beceiyer, 

Salt Lake City, Utah. 

GENTLE3fEN : The appraisers have appraised the lands in the Fort 
Cameron, iK)St and wood and timber, abandoned military reservation 
at from ten cents to two dollars and fifty cents per acre. 

The Secretary of the Interior has approved the appraisal of the lands 
appraised at or above $1.25 per acre, and for lands appraised at less 
than $1.25 per acre he has, under the law, fixed the minimum price of 
such lands at $1.25 per acre. Therefore, no tract of land in this reser- 
Tat ion can be disposed of at less than $1.25 per acre, although you will 
be governed by the appraisal in disposing of those lands appraised at 
more than $1.25 per acre. 

All of said lands, except the SB. i SE, J Sec. 14, the NE. J Sec. 23 and 
N W. \ N W. I Sec. 24, T. 29 S., B 7 W., which contain buildings purchased 
by Mr. John B. Murdock from the government, and all school sections, 
reserved by law from settlement and entry, are subject to settlement 
under the provisions of the act of August 23, 1894 (28 Stat,, 491), 
which, among other things, provides: 

That persons who enter under the homestead law shall pay for sach lands at not 
less than the value heretofore or hereafter determined hy appraisement, nor leae than 
the price of the land at the time of the entry, and such payment may, at the option of 
the purchaser, be made in iive equal installments; at times and at rates of interest 
to be fixed hy the Secretary of the Interior. 

On April 9, 1895 (20 L. D., 303), the Secretary of the Interior directed 
this office to issue instructions under said act of August 23, 1894, as 
follows: 

That the homesteader be given the option in making payment upon his entry of 
these lands, of making his payments in five equal payments to date fh>m the time of 
the acceptance of his proof tendered on his entry, and that the rate of the interest 
Qpou deferred payments be charged at the rate of 4 per cent per annum. 



270 DECISIONS RELATING TO THE PUBLIC LANDS. 

In allowing entries for lands in this reservation, under said law, yoa 
will in each case endorse on the application ^^ Fort Cameron Reserva- 
tion, act August 23, 1894,'' and i^ake the same notation on your abstract 
of homestead entries. 

Under the provisions of the homestead law, an entryman has the 
right either to commute his entry after fourteen months from date of 
settlement, or offer final proof under Sec, 2291 E. S. In entries under 
said act of August 23, 1894. he may, at his option, commute after 
fourteen months with full payment in cash, or, after submitting ordi- 
nary five year final proof and after its acceptance, he may pay for the 
land the full amount of the appraised value thereof or at not less than 
$1.25 per acre, without interest, or he may make payment in five equal 
installments, the first payment to be made one year after the accept- 
ance of his final proof, and the subsequent payments to be made 
annually thereafter, interest to be charged at the rate of four per cent 
per annum from the date of the acceptance of final proof until all pay- 
ments are made. 

In case the full amount is paid after fourteen months from date of 
settlement you will, if the proof is satisfactory, issue cash certificate 
and receipt; and in the event that regular final proof is made, and the 
full amount then paid, you will issue final certificate and receipt; but 
when partial payments are made the receiver will issue a receipt only 
for the amount of the principal and interest paid, reporting the same 
in a special column of the abstract of homestead receipts, and at the 
time last payment is made, you will issue the final papers as in ordinary 
homestead entries. 

In issuing final papers you will make the proper annotations thereon, 
as well as on the applications and abstracts, as before directed, to show 
that the entry covers lands in Port Cameron reservation. 

You are further, advised that the same rule, as to the allowance of 
credit for residence prior to entry and for military service, applies to 
entries under said act of August 23, 1894, as to other homestead entries. 

Where, upon submitting final proofs the entrymen elect to make 
payment for the lands entered in five annual installments, you are 
authorized to make the usual charges for reducing the testimony to 
writing, but as the final certificate and receipt cannot be issued until 
the last payment is made you cannot charge the final commissions 
until said final certificate and receipt are issued. 

Where the entrymen submit final proofs and elect to pay for the 
lands in installments, you will not give said proofs current numbers 
and dates but will, if they are acceptable to you, make jiroper notes on 
your records showing that satisfactory proof has been made and the 
dates upon which the partial payments must be made, and then trans- 
mit said proofs to this oflBce, in special letters, and not in your monthly 
returns, for filing with the original entries. 

There are no guarantees to be taken in order to secure payment of 



DECISIONS RELATING TO THE PUBLIC LANDS. 271 

the installments, but if, when each installment is due, any entryman 
fails to pay the same you will report the matter to this office when 
proper action will be taken in the case. 

Tbe said act of August 23, 1894, did not repeal the act of July 5, 
1884 (23 Stat., 103), hence, parties qualified to make entry under the 
second section of the latter act may do so without making other pay- 
ment than the legal fee and commissions. 

Sections 2, 16, 32 and 36 of this reservation are reserved for school 
purposes. 

On May 4, and August 5, 1895, you transmitted the applications of 
John B. Murdock to be permitted to purchase, under the third section 
of the said act of July 5, 1884, the S W. i S W. J Seel 13, NW. J I^ W. i Sec. 
24, S.J SE. i Sec. 14 and the NE. J Sec. 23, T. 29 S., R. 7. W., sub- 
divisions containing buildings x)urchased by him from the government. 

Subsecjuently Mr. Murdock relinquished all claims to the SW, J 
SW.^ Sec. 13, and the SW. J SE. i Sec. 14, T. 29 S,, R. 7 W. It there- 
fore appears that the subdivisions containing buildings and which Mr. 
Murdock is entitled to purchase are the following, viz: SE. J SE. J Sec. 
14, the NE. i Sec. 23, and NW. J NW. J Sec. 24, T. 29 S., R. 7 W. 

You will advise Mr. Murdock that he will be allowed sixty days from 
notice hereof, within which to make application to purchase the last 
mentioned subdivisions, upon which the buildings are situated, and to 
pay therefor the appraised value where that is fixed at or more than 
$1.25 per aore, and at the rate of $1.25 per acre for the subdivisions 
appraised at less than $1.25 per acre, and inform him that if he fails 
to make said purchase within the time specified the lands will become 
subject to homestead entry by the first legal applicant. 

Id case the application is made and tbe purchase money tendered 
yoa will issue cash certificate and receipt, modified to suit the case, 
making the following notation on the margins thereof: "Purchased 
wider Sec. 3, act of July 5, 1884." 

Issue notice to Mr. Murdock and in due time make report in accord- 
ance with circular of October 28, 1886 (5 L. D., 204). 

You will acknowledge receipt of this letter. 

Very respectfully, B. F. Best, 

Acting Gommissioner, 

Approved March 22, 1897 : 
C. N. Bliss, 
Secretary 



272 DECISIONS RELATING TO THE PUBLIC LANDS. 

SETTLEMENT RIGHT— STATE SELECTION. 

Benson v. State of Idaho. 

No rights are secured by a settlement made for the porppse of securing the timlMT 

on the land and not for the establishment of a home. 
A State selection made prior to the official filing of the township plat is premature 

and invalid. 

Secretary Francis to the Commissioner of the General Land Office^ January 
(I. H. L.) 8, 1897. (B. W. H.) 

On July 16, 1894, Elmer £. Benson made application to enter, under 
the homestead law, the W. J of the SE. J, the SE. J of the SE. J, Sec 
8, and the SW. J of ttie SW. J Sec. 9, Tp. 39 N., R. 2 E., Lewiston land 
district, Idaho. His application was rejected, on the ground that the 
State of Idaho had selected the land under its grant for the support 
and maintenance of an insane asylum, as provided by section 11 of 
the act of July 3, 1890, for the admission of the State of Idaho into the 
Union. (26 Stat, 215.) 

On appeal to your office a hearing was ordered, which resulted in a 
recommendation by the local office that Benson's homestead applica- 
tion be allowed and the State selection canceled. 

Upon the State's appeal from this decision of the local office, your 
office declined to allow said homestead application, for the reason that 
you were not satisfied from the testimony that — 

Benson went upon the laud honestly and in good faith for the purpose of actual 
settlement, and of honestly endeavoring to comply with all the requirements as to 
settlement, residence and cultivation necessary to acquire title under the homestead 
law, [l>eing] of the opinion rather that his purpose fi-om the first was speculative 
only, in that he intended to ohtain the valuahle timher upon the land hy means of 
a homestead entry, without complying with the conditions of the homestead law. 

This conclusion is supported by the facts as they appear in the 
record. Benson was an unmarried man. He first went upon the land, 
which was covered with valuable timber, about April 24, 1894, cleared 
about a quarter of an acre and laid eight small unhewn logs in square 
form as a foundation of a cabin. In the latter part of May, or early 
part of June following, he finished the cabin with logs of the same sort, 
and after that did nothing more upon the land up to the time of the 
hearing. 

There is no disinterested testimony as to Benson's good faith, his 
only witnesses being his brother Grin L. Benson, and Mace E. Kent, 
both of whom had contests pending against the State's selection of 
neighboring tracts, and who depended, each upon the other, for evi- 
dence to support their claims. 

Against this testimony the State produces two witnesses, Florence 
and Jordan, the former a public officer and the latter his assistant, 
who were employed by the State to make the selections under its grant 



DECISIONS RELATING TO THE PUBLIC LANDS. 273 

from Congress; and, inasmuch as the law (act of March 3, 1893,) pro- 
vided that the preference right of selection for the period of sixty days, 
given therein to the States, " shall not accrue against bona fide home- 
stead and pre-emption settlers on any of said lands at the date of filing 
of the plat of survey of any township in any local office of said States," 
it must be i)resumed, in the absence of evidence to the contrary, that 
the Staters selecting agents used due diligence to discover evidences 
of settlement, and were careful to avoid the selection of occupied 
tracts. 

Both Florence and Jordan, on behalf of the State, swear that they 
went over this land in May, 1894, and saw no indications of settlement 
or improvements alleged to have been made on the ground in April. 

Upon weighing the testimony, I find that whatever settlement there 
was on the land was only a colorable one, and made to anticipate the 
filing of the map and the selection of the State, with a view to secur- 
ing the valuable timber thereon, and not for a home. 

In Dobie r. Jameson (19 L. D., 91), Little r. Duraiit (3 L. D., 74), 
McWeeney v, Greene (9 L. D., 38), and many other cases, it is held that 
'*the acts of settlement upon unsurveyed land must be of such a char- 
acter, and so open and notorious, that the public generally may have 
notice of the settlers' claims." The rule as laid down in Wright v, 
Larson (7 L. D., 555), applies as well to this case as to entries under 
the act of June 3, 1878. It is that " a settlement for the purpose of 
securing the timber on the land, or for auy other purpose than estab- 
lishing a home, is not a bona fide settlement within the meaning of said 

OlCl* 

Your decision declining to allow Benson's homestead application is 
therefore aiHrmed. 

Among the specifications of error in the claimant's appeal, is the 
following: 

Tbe Hon. Coram isdioner erred in not holding and deciding that the selection l>y 
the State of Idaho, embracing the land in controversy, was prematurely made, and, 
as snch, wa« and is absoUitely void. 

It appears from the record that the plat of township 39, range 2 E., 
B. M., was received at the local office at Lewiston, on May 4, 1894, and 
that George B. Florence, State selecting agent for Idaho, selected the 
land in controversy on June 30, 1894, for the insane asylum (List Ko. 3), 
under the grant contained in section 11 of the act of July 3, 1890 (26 
U. 8. Stat., 215), providing for the admission of Idaho as a State into the 
Union. The plat, however, was not officially filed in the local office 
until July 2, 1894. Prior to this date, under rules established by the 
Department, the land embraced in said approved plat was not subject 
to entry or selection (4 L. D., 202), 

In Campbell r. Jackson (17 L. D., 417), it is held— 

lliat an apphcation to enter land, which is not subject to entry at the time tlie 
Application is made, confers no rights upon the applicant. This was held in Goodale 
lOdTl— VOL 24 18 



274 DECISIONS EELATING TO THE PUBLIC LANDS. 

V. Olney (13 L. D., 498), and iu Maggie Laird, on page 502 of the same Tolnme 

The same rale would prevail in the case of a selection by a State, and it must be made to 
appear, that at the time the State applied to select the land, it was subject to sncli 
selection. Otherwise, no rights would be secured by the application. 

In Lansdale v. Daniels (100 U. 8., 113), Mr. Justice Cliflfbrd said: 

Beyond doubt the declaratory statement was a nullity, as it was filed at a time 
when the act of Congress gave it no effect. The fact that it remained in tlie local 
office will not remove the difficulty, as it was made and filed without autboritT 
of law. 

The Department makes no distinction between entries by individuals 
and selections by States or corporations under Congressional graDts. 
as to the time when their rights, respectively, attach, unless the lan- 
guage of the grant itself makes an exception to the general rule, as 
stated above, which is not claimed in the present case. 

The State selection of the land in question, ma^le June 30, 1894, prior 
to the oflBcial filing of the township plat on July 2, 1894, was therefore 
premature and invalid. (William Berth, 22 L. D., 385.) 

No right, however, accrues to Benson, because his settlement was 
not bona fide and his application was speculative. 

The land in question is still a part of "the surveyed, unreserved 
and unappropriated public lands of the United States within the limits 
of the State," and subject to selection by the State under the direction 
of the Secretary of the Interior, as provided in section 14 of the act of 
July 3, 1890, provided that, at the time of exercising its right, the land 
is not occupied by a bona fide homestead settler or reserved under auy 
other law for the disposal of the public lands. 



PRAC?T1C:E— ORDER FOR HEARING-RAILROAD GRANT. 

« 

St. Louis, Iron Mountain and Southern Ry. Co. v. MoClaine. 

An order for a hearing issued by the Greneral Land Office, on the appeal of an appli- 
cant from the rejection of his application to enter, operates as a disposition of 
said appeal, and its want of regularity is thereafter not material. 

Land not protected by withdrawal and embraced within a bona fide settlement claim 
is not subject to indemnity selection. 

Secretary Bliss to the Commissioner of the General Land Office^ March 
(I. H. L.) 15, 1897. (W. M. W.) 

The case of the St. Louis, Iron Mountain and Southern Eailwav 
Company v, John H. McClaine has bfeen considered, on the appeal of 
the former from your office decision of November 9, 1895, holding for 
cancellation its list of selection as to the E. ^ of the NW. J of Sec 17, 
T. 22 N., E. 3 E., Ironton, Missouri, land district. 

The land in question is within the indemnity limits of the graut to 
the Cairo and Fulton Railroad Company, now the St. Louis, Lron Moan- 
tain and Southern Railway Company by the act of July 22, 1866 (14 
Stat., 338), and was selected by the company July 12, 1894, i)er list No. 1. 



DECISIONS RELATING TO THE PUBLIC LANDS. 275 

The withdrawal made in favor of said road was revoked August 15, 
1887. See circular, 6 L. D., 131, 133. 

The records of your office show that, ou June 6, 1869, one Gish made 
homestead entry for the NW. J of Sec. 17, T. 22 N., R. 3 E., which was 
canceled October 7, 1876; that on October 14, 1878, Austin Fuller made 
homestead entry for the S. J of the NW. | of said section, which was 
canceled on May 5, 1886; that on December 26, 1885, Andrew Inman 
made homestead entry for the NE. J of the N"W. J of said section, which 
was canceled May 26, 1893. 

On August 3, 1894, John H. McGlaine filed in the local office his appli- 
cation to make homestead entry of the tract in controversy, which 
application was rejected for conflict with the selection made by the 
raihoad company. 

McClaine appealed to your office. 

On June 20, 1895, your office considered McOlaine's appeal, and found 
that he based it on ttie ground that he made bona fide settlement upon 
this land May 28, 1894, with the intention of entering it under the 
homestead laws; that on the same date 

he applied at the local office of the clerk of the court of Kipley county, for the 
purpose of making application to homestead this tract, but owing to his not being 
familiar with the description of the land, he made out his application papers in 
blank, and left them with the clerk until the proper description could be furnished, 
ami feeling secure in his position as possessor in fact, he deferred perfecting his 
application until August 1, 1894; that his improvements consisted of a dwelling 
house, 19 by 25 feet, and about twenty acres cleared and in cultivatiou, 

and that his improvements were made before the company's selection 
and were worth about $1,050. 

On this showing your oflBce directed a hearing, after due notice to 
the parties in interest, to establish the exact condition of the land at 
the date of its selection by the railroad company. 

On September 6, 1895, the hearing was had, after due notice to 
each of the x>arties. Both parties appeared by attorneys at the hear- 
ing. 

The evidence submitted at the hearing on the part of McClaine 
shows, without conflict, that about October 1, 1893, McOlame and his 
wife moved ou this land ; that at that time there were improvements on 
the land, consisting of a log house and two stables j afterwards, 
McClaine built a one- room log house, a frame smoke house, dug two cis- 
terns and ma<le rails to fence a portion of the land; that on July 1, 
1894, McGlaine had some of the land in cultivation; that McGlaine's 
residence on the tract has been continuous since October, 1893. The 
county clerk ot Ripley county, Missouri, testified that on May 28, 
1894, McClaine went to his office to make out his homestead application 
papers, for land embraced in Sec. 17, T. 22 N., R. 3 E., but was in 
doabt as to the correct description of the land on which he settled, so 
he (the clerk) filled out the blanks, except the description of the tract, 
and McGlaine signed the papers and left them and the necessary fees 



270 DECISIONS RELATING TO THE PUBLIC LANDS. 

with the clerk; after that, and before August 1, 1S94. McGlaine aseer- 
taiued the correct description of the tract he intended to enter, and 
went to the clerk's office to get his application papeis, and thereapon, 
at the suggestion of the clerk, executed a new application to euter, 
dated August 1, and filed August 3, 1894. 

The railroad company did not introduce any evidence. 

The register and receiver made no decision, but transmitted the evi- 
dence and record to your office, and, in view of the somewhat irregular 
proceedings m the case, you exercised your supervisory authority aud 
passed upon the whole record as it was presented. 

On September 24, 1805, resident counsel for the railroad company 
tiled a motion in your office to dismiss the appeal of McGlaine from the 
action of the local officers of August 3, 1894, rejecting his application. 
Said motion was based upon the ground that the appeal was not served 
ui)on nor any notice thereof given to the railroad company. 

Upon consideration of the case on the merits, your office set aside 
the action of the local officers in rejecting McClaine's application, 

as being contrary to the facts and merits of the case, and, under this showing, I will 
hold that it is immaterial whether a notice of said appeal was served upon the 
railroud, or whether he had filed any appeal. 

Your office further found that 

McGlaine had a bonajlde settlement and residence upon the land prior to its selectioa 
by said railroad company, and also that he endeavored to make homestead entry for 
the tract May 28, 1894. 

In its appeal, the company alleges error in your office decision on 
five grounds, all of which may practically be considered under two 
general heads: 1. Did your office err in its action on the company's 
motion to dismiss McClaine's appeal? 2. Was the finding of your oflice 
erroneous in holding that McClaine's settlement and improvement od 
the land were sufficient to defeat the railroad company's selection! 
Each of these must be answered in the negative. 

Your office evidently treated McClaine's appeal as an application for 
a hearing, and as such found it was sufficient to justify an investi^^a 
tion. The matter of ordering a hearing was discretionary with you. 
KeeVes r. Emblen, 8 L. D., 444; Ulitalo r. Kline et al,,9 L. D., 377. 

The action of your office in ordering the hearing has not been que.s- 
tioned by the company. It is clear that your office had authority to 
make the order for an investigation without notice to the railroad 
company. When that action was taken it disposed of the appeal; the 
case was not pending on said appeal at the time the motion to dismiss 
it was filed, nor when it was decided on the merits. When the heariD^f 
was ordered, in a legal sense, the whole case was sent back to the local 
officers for disposition de novo by them in the light of such evidence as 
might be adduced by the parties. 

At the time your office decided the case on its merits, the case was 
pending on the report of the register and receiver and the evidence 



DECISIONS RELATING TO THE PUBLIC LANDS. 277 

taken at tbe trial. The irregular manner in which the case on its 
merits reached your office can not be held to revive the original appeal, 
ill fact it had nothing to do with it. 

The motion to dismiss clearly related to an immaterial matter. 

From a careful examination of the evidence, the conclusions reached 
bv vour office are concurred in. 



PILVCTICE-NOTICE OF APPEAL— Bi:riU>EN OF PROOF. 

Majors v. Rinda. 

Rule 105 of Practice, providing for tho service of notices upon attorneys, is one of 
convenience, and not of exclusive right; hence an appeal is not defective in the 
matter of notice, if the service is made upon the appellee, and not upon hia 
attorney. 

The local officers, after due notice given, may inspect the premises in dispute, and 
use the information thus obtained as an aid to the proper understanding and 
valuation of the evidence adduced at the hearing. 

The burden of proof is properly upon one alleging the mineral character of a tract 
that has, prior thereto, been adjudged agricultural. 

Sf'cretary Bliss to the Commissioner of the General Land Office^ March 
(I. H. L.) ^-i, 1897. (E. B., Jr.) 

This is an appeal from the decision of your office dated September 
25, 1896, in a proceeding wherein Alexander Mjyors appears as con- 
testant against the homestead entry of Venzel C. Einda, made January 
21, 1895, for the SE. \ of the SE. i of section 13, T. 10 N., E. 4 W., 
Helena, Montana, land district, the grounds of Majors' contest, as set 
out in his corroborated affidavit thereof, filed February 27, 1895, being 
that the land is more valuable for the gold it contains than for agricul- 
ture, and that he claims the same under placer locations made December 
•3, 1894. The decision of your office was in affirmance of the decision 
of tbe local office dated May 36, 1896, after hearing duly had June 17 
to 29, 1895, and held the laud to be agricultural and not mineral in 
character and dismissed the contest. 

Mr, George B. Foote, attorney for Einda, has filed a motion to dis- 
n)is8 the appeal on the ground that the same was not served upon him 
f Foote) as required by the Rules of Practice, citing Eules 86, 104, and 
105. 

The rules are cited as follows: 

Rule 86. Kotice of au appeal from the Commissioner's decision must be filed in 
the General Land Office and served ou tbe appellee or bis counsel within sixty days 
iVom the date of tbo service of notice of such decision. 

Rule 104. In all cases, contested or ex parte, where tbe parties in interest aro 
re])re8ented by attorneys, snch attorneys will be recognized as fully controlling the 
cases of their respectiTe clients. 

Rule 105. All notices will be served upon the attorneys of record. 



278 DECISIONS RELATING TO THE PUBLIC LANDS. 

It appears from the record that notice of your office decision was 
mailed to Majors' attorney on October 2, 1896, and that on December 
10, 1896, within the seventy days allowed in such case (Rule 87), 
Majors, by his attorney, filed an appeal, a copy of which was received 
by Einda, himself, the same day, having been mailed to him the day 
preceding. It does not appear that any direct notice of appeal wa.s 
given Eioda's attorney. None was necessary in view of the notice to 
Einda (Sew Orleans Canal and Banking Go. v. State of Louisiaua, 
5 L. D., 479; and Northern Pacific E. E. Co. v. Bass, 14 L. D., 443). 
Eule 86 is specific and controlling as to the person to whom the notice 
may be given. Eules 104 and 106, under the subhead "Attorneys,'' 
were intended to give due recognition to attorneys practicing before 
the land department, in their representative capacity, but not to oper- 
ate in any way to accord to them standing or authority there superior 
to that of their clients, nor divest the latter of the right to recognition 
and supreme control in litigation. Eule 105 is one of convenience and 
not of exclusive right. The motion is accordingly denied. 

Of the numerous errors assigned in the appeal, only three require 
any consideration : 

1. Error to hold that the burden of proof is upon the plaintiff. 

2. Error not to tind that the locul officers ignored the weight of the evideuce and 
rested their conclusion as to the character of the land upon al|eged tests made m 
their {iresence upon the land and by partisans of the defendant procured by him for 
the purpose and upon unsworn testimony there received by the local office and error 
not to reverse their decision because thereof. 

3. Error not to find that the land is shown to be mineral in character as a present 
fact and more valuable for mining purposes than for agricultural purposes. 

The land above described has been the subject of litigation before 
the land department for several years. It is within the granted limits 
of the Northern Pacific Eailroad Company, and adjoins the city of 
Helena, Montana, on the north. Application having been made on 
July 29, 1881, by Karl Kleinschniidt and others to make mineral entry 
for the land, the said company and Einda filed protests against tlie 
same, alleging the land to be agricultural. Upon the testimony sub- 
mitted at a hearing in June, 1888, at which the mineral applicants 
made default, the local office decided the land to be non-mineral. 
Your office affirmed the decision of the local office, and on May 24, 
1889, canceled said mineral application. A second hearing involving 
the land was had in July, 1889, at which Einda, said company and 
Majors were parties, the company claiming under its grant and Rinda 
and Majors as applicants to make homestead entry therefor. The his 
tory of this second case is given in Einda v. Northern Pacific R. R. C<>. 
€t ah (19 L. D., 184). The right of entry was awarded by the Depart- 
ment to Rinda, as against Majors, by virtue of his successful contest 
against the mineral application of Kleinschmidt et al, and of his prior 
homestead application, it being held that, despite his prior settlement. 
Majors, who had previously made and relinquished a homestead entry 



• DECISIONS RELATING TO THE PUBLIC LANDS. 279 

for another tract, could not make a second entry under the act of 
March 2, 1889 (25 Stat., 854), in the presence of Kinda's adverse claim. 
Hinda's entry above mentioned, now under attack by Majors, was made 
pursuant to this decision. 

The decisions of the local office and your office in the first contest 
involving this land and the entry of Einda pursuant to the decision of 
the Department, were beyond question abundantly eflfective to bestow 
upon this land a strongly agricultural status, and to place upon any- 
one thereafter asserting its character to be mineral, the burden of 
proof. The onus was therefore rightly placed upon Majors. 

I am unable to discover from a very careful examination of the record 
before me any evidence of irregularity, or of undue or improper influ- 
euce by or in behalf of the defendant, in or in connection with the 
visit of the local officers, July 17, 1895, to the land, and their personal 
examination thereof. Their visit and examination were in pursuance 
of motion and notice duly made and given, and it does not appear that 
the information thus gathered by them was used by them otherwise 
than as an aid to the proper understanding and valuation of the 
evidence adduced at the hearing, nor that they sub.^tituted in any 
extent their personal knowledge of the character of the land for 
sach evidence. The second assignment of error is not therefore well 
founded. 

The testimony taken at the hearing is very voluminous, and, as to 
the character of the land, very conflicting. At both previous hearings 
hereinbefore mentioned Majors testified very positively that the land 
was non-mineral in character. He had resided upon the land since about 
April, 1882, be stated, and had had experience as a miner and ha4 pros- 
I)ected it and was satisfied that it was not worth anything for mining 
purposes. He testified at the hearing in the case at bar that when he 
learned that the Department had awarded the land to Kinda he went 
ahead and prospected it, and in the latter part of November, 1894, dis- 
covered gold, and on December 3, following, located one-half of the 
land as a placer claim for himself and the other half for his wife. Cer- 
tified copies of these locations covering the entire forty acres are on 
tile— the location for the north twenty acres made in the name of said 
Majors and for the south twenty in the name of his wife. 

It is not necessary to discuss the testimony as to the chara^^ter of 
this land at any length. It has been very carefully read and consid- 
ered. The land has been quite thoroughly prospected. According to 
the testimony for Majors, gold, ranging from minute particles to nug- 
gets as large as a pea, is quite evenly distributed throughout the 
entire soil (which is gravelly, with some boulders), from the grass roots 
down to an unknown depth ; and will pay from about two to six dollars 
per day per man, with the use of water which can be readily obtained 
at reasonable cost; and the land is of but very little value for agri- 
calture. Rinda's witnesses testify that from extensive and careful 



280 DECISIONS RELATING TO THE PUBLIC LANDS. 

examinations of ground taken from the same shafts, holes, and iK)ints 
on the surface, from which Majors and his witnesses obtained the 
ground they tested, they (the former) conhl only get, at the best, a few 
scant colors of gold and very often nothing at all; that the mineral 
product of the land would not, at the utmost, amount to more than a 
few cents per day per man with plenty of water and improved processes; 
and that by the reasonable use of water and fertilizers the land is far 
more valuable for agriculture than for mining. ^N'early all of the wit- 
nesses for the respective parties testified that they were experienced 
miners. The local officers who saw and heard the witnesses evidently 
gave more credence to those of the entryman, Einda, and, I am con- 
strained to believe, projierly so, from my reading of the testimony. 

The burden of proof has not been successfully carried by Majors, and 
his contest must therefore fail. I find no warrant to disturb the decisioD 
of your office, and the same is accordingly affirmed. 



PnACTICK— RErONSinER.VTIOX OF CASE-TrMBER C'l'L,TURE 

APPLICATIOX. 

Northern Pac^ific R. R. Oo. r. Ooffman et al. 

Prior to tlie issnance of patent, the land department may re-opeu a case, t-o corrert 
nn error in the decinion thereof, and readjudicate the same, after due notice to 
tho parties. 

The right secured hj a timber culture application, erroneously rejected and pending 
ou appeal, may be exercised by the heir of the applicant. 

Secretary JiliuM to the Commissiofier of the General Land Office^ March 
(I. H. L.) ^.'7, 1897. (A. B. P.) 

This case involves the SE. \ of Sec. 19, T. 15 N., R. 42 E., Walla 
Walla, Washington. 

The land was within the limits of the executive withdrawal on 
amended map of general route filed by the Northern Pacific Railroad 
Company February 2, 1872, and fell within the indemnity limits of said 
company's grant on map of definite location of its road filed November 
17, 18H0. 

It appears that Thomas H. Coffman made timber culture application 
for the tract in June, 1883, but the same was rejected by the local 
officers because of confli(»t with the said withdrawal of 1872. Coffman 
appealed. 

On March 20, 1884, the company selected the land for indemnity pur- 
poses under its grant. 

The appeal of Coffman was considered by your office on October 2, 
1888, and the decision below was reversed. Upon the company's 
appeal to this Department, your office decision was, on August 8, 1894, 
affirmed. Coffman was thereupon allowed thirty days after notice 
within whicli to make timber culture entrv for the land, in which event 



DECISIONS RELATING TO THE PUBLIC LANDS. 281 

it was directed that the comijany's selection should be canceled, but 
otherwise, his application would be finally rejected and the company's 
selection allowed to stand. 

On June 10, 1895, the local officers reported that notice had been 
^iven as directed, by letter addressed to Ooffman at Colfax, Washing- 
ton, but the letter had been returned uncalled for. Upon this report 
3'our office, on June 2G, 1895, finally rejected Coft'man's application and 
closed the case. 

It further api>ear8 that on July 8, 1895, Maud A. Cottman filed in the 
local office her affidavit, dated May 13, 1895, at Bexar county, Texas, 
setting forth that she is the only child of Thomas Oofifhian, deceased; 
that said Thomas Cofifman never exercised his right to muke timber 
culture entry; and that at the date of his timber culture application 
for the land in question, he was qualified to make such an entry. She 
at the same time tendered the necessary fees, and formally applied to 
be allowed to complete the timber culture filing of her father. 

The affidavit and ax)plication were at once forwarde<l by the local 
ofticers, and upon examination thereof your office, on August 3, 1895, 
re-oi)ened the cswe for further consideration, and returned the applica- 
tion papers to the local officers for appropriate action, with directions 
that Miss Cofl'man be advised thereof, and allowed thirty days within 
which to make entry for the land in accordance with the provisions of 
the timber culture law (20 Stat, 113), if found qualified and entitled to 
do 80, in which event it was further directed that the company's selec- 
tion of tlve land be canceled. 

From this action by your office the railroad company has appealed. 

By the errors assigned in this appeal it is, in effect, asserted : 

1. That having finally rejected the application of Thomas H. Coff- 
man, on June 20, 1895, your office was without authority thereafter to 
reopen the case in the absence of any motion for rehearing by either 
party; 

2. That Thomas H. Coffman having failed to make entry during his 
life, it was error to allow his daughter to complete his timber culture 
application by entry after his death, under the timber culture act; and 

3. That in the absence of notice to the company, your office was 
without authority to consider, in any manner, the ap])lication of 
Maud A. Coffman. 

The point raised by the first assignment is, in my judgment, wholly 
nntenable. While it is true tlnit the case was formally closed, as 
stated, and the company so notified by your office, it do€s not follow 
tiiat the Land Department thereby lost jurisdiction of the land 
involved, prior to patent to the company, so as to absolutely preclude 
a reoi)ening of the case of its own motion, or upon application of any 
party interested, in the event it should subsequently appear that the 
action in closing the case was probably premature, or otherwise errone- 
ous in any respect. Of course it would be improper to re-oi)en, and 



282 DECISIONS RELATING TO THE PUBLIC LANDS. 

proceed with the re-adjudication of a case without notice, but such does 
not seem to have been done or attempted in this case. The records of 
your office show that the attorneys of the appellant company were 
advised by letter the very day the action complained of was taken, 
not that the application of Miss Goffman had been allowed, but that 
the case had been that day ** re-opened, with a view to the allowauce 
of " said application, the letter closing with the statement: ^^ You will 
take due notice hereof." This notice gave the company abuudaut 
opportunity to reappear and do whatever was necessary to protect its 
interests in the x)remises. 

Nor is there, in my judgment, any merit in the third assigumentof 
error. The simple act of re-opening the case was in no sense a read- 
judication of any question involved in it, and from the very nature of 
the proceediug, could not be. Notice of that act was duly given, and 
the company was thereby afforded every opportunity of defending the 
newly presented application that it could have had, if it had been noti- 
fied before the case was reopened. There has been, as yet, no final 
action in the case in favor of Miss Coftman. She appears to have been 
allowed by the local officers to make timber culture entry for the land, 
on September 11, 1895, and the entry papers were forwarded to yoiu* 
office, and are filed in this record (though not i)roperly a part thereof), 
but there has been no action thereon by your office. The company has 
still the right, and will be allowed to appear and protect its interests 
in the premises, by interposing such defense as it may wish. While, 
therefore, it would have been the better practice, upon the receipt of 
the application of Miss Coffman, to have notified the company to show 
cause, if any it (jould, why the case should not be reopened lor the 
consideration of that application, yet I do not think the failure to do 
so, was, under the circumstances of this case, reversible error. As the 
company still has opportunity to make any defense not now properly 
X)reseuted by its said appeal, I do not see that any good could be 
accomplished by sustaining its appeal in this particular even were it 
otherwise proper to do so. 

The second assignment of error goes to the merits of the controversy 
as far a« they can be determined at this stage of the proceeding. It 
involves a denial of the right of Maud A. Oofimau, as the legal heir of 
Thomas IL Coflman (if indeed she is such) to complete the latters 
application or tiling by entry niider the timber cukure law. The facts 
on this point are that Thomas H. Coffman while in life, did everything 
he could do toward perfecting his entry. He filed his application U> 
enter as early as June, 1883, and tendered the necessary fees, as shown, 
but the same was rejected for the reasons stated, which action was 
afterwards held to be erroneous by this Depai*tment. But for this 
erroneous action his entry would have been allowed and in all proba- 
bility, before this time, passed to patent. Thus by the erroneous 
action of the local office he was prevented from making any further 



DECISIONS RELATING TO THE PUBLIC LANDS. 283 

eoiupljauce with the timber culture law, aud was compelled to await 
the final acyudication of his rights upon his appeal, which he did, and 
although his appeal was filed in 1883, it was not acted upon until 1888, 
a seemingly unreasonable delay, due to no fault of his. By his affida- 
vit filed in this case October 27, 1887, it appears that at that date ho 
had erected two miles of fence on the land (presumably enclosing it) at 
a cost of $320. He also, at the same time, filed a renewal of his appli- 
cation to enter the land, but no action appears to have been taken 
thereon. 

Can his heir now complete his entry, and by further compliance with 
the law thereunder save the land and the improvements thereon? 

In the case of Southern Pacific Bailroad Company v. Sturm (2 L. D., 
546), which arose under the timber culture law, and was in some respects 
similar to this case, Secretary Teller held : 

Althoagh Sturm did not actually make aa entry of the tract, he uevertLeless 

applied in good faith so to do aud tendered the requisite fees And Just as 

there is no difference in principle between a case where the filing was recorded aud 
ODB where the filing was offered and rejected, neither is there any difference iu such 
a case as this, sof ar as the applicant's rights are concerned, for they inure to the 
benefit of the heirs. That the tract was subject to his entry cannot, in the light of 
the aforesaid state of facts, be questioned. His right to enter the tract was not 
prejudiced by the register and receiver's denial of his application. See Duffy r. 
Northern Pacific Railroad Company (2 Copp, 51), aud Shepleyct a/, r. Cowan et ah 
(91 U. 8., 330). 

But inasmuch as he was prevented by death from perfecting his application, entry 
will be allowed iu proper form in the name of his heirs, provided the same is made 
within ninety days from receipt of notice hereof. 

The principle announced in that case has been followed by the Depart- 
ment in a number of cases. In Tobias Beckner (6 L. D., 134-7) it was 
said: 

The broad underlying principle that controls the qnestion is — that when a person 
initiates any right in compliance with, aud by authority of the public land laws, aud 
tlies before completing or perfecting that right, it will not escheat and revert to the 
government, but inure to those on whom the law aud natural justice ca^t a man's 
property, and the fruits of his labor after his death. 

See also the case of Eosenburg v. Hale's Heirs (9 L. 1)., 161), • O'Con- 
ner v. Hall et at. (13 L. D., 34); Thompson r. Ogden (14 T.. D., 05); 
Bellamy v. Cox (24 L. D., 181). 

Iu the present case the right of entry was lawfully iuitiated by 
Thomas H. Coffman by the filing of his application and the tender 
by him of the requisite fees; imd he appears to have done all he could 
to perfect his entry while in life. The land was undoubtedly subject to 
entry when his application was presented; and, therefore, the right 
initiated by him could not be prejudiced by the action of the local offi- 
cers in rejecting his claim. 

Under the authorities cited, I am of the opinion that upon his death 
the right thus initiated, though uncompleted, inured to his heirs, and 
that they should be allowed to x>erffect the right by entry under the 



284 DECISIONS RELATING TO THE PUBLIC LANDS. 

timber culture law. The application of Maud A. Coffman, as sncli beir^ 
however, is not before me for action on this appeal, and no (juestion 
relative to that application as allowed by the local officers is intended 
to Imj decided. All that is now decided is that the lawful lieir or heirs, 
if any, of Thomas H. Coffman should be allowed to perfect the entry 
initiated by him. Whether Maud A. Coffman has proi)erly shown her- 
self to be such heir is not a question now before me. Upon that (jnes- 
tion the company will he allowed ample opiK)rtunity of proper defense. 
In view of the foregoing, I find no error in the decision appealed 
from, and the same is therefore affirmed. 



LAND RKSEUVKI> FROM KXTKV-APPLICATIOX. 

Lowell D. Teter. 

Lands embraced within a departmental order directing tueir reservation until ftir- 
th«.*r instructions are not subject to entry during thi* pendency of said order. 

Secretary BIvsh to the ComminHioner of the General Land Office, March 
(I. IT. L.) ;?>, 1S97. (C. J. G.) 

1 have considered the api>eal of Lowell 1). Teter from your office 
decision of March 29, 1895, wherein is affirmed the action of the l(»oal 
office in rejecting his homestead application for the W. i of SW. \^ Sec. 
13, T. 17 N., E. 2 E., Guthrie land district, Oklahoma. 

The said application was rejected 

for the reason that the schedule of lands opened to settlement by tho President's 
proclam.ation dated September 1^, 1891, o